News: State of play in the Court of Disputed Returns

The High Court entered its summer holiday having fully resolved nine matters in the Court of Disputed Returns concerning the 2016 federal election in four full court judgments, one each concerning one of the five disqualifications for federal MPs set out in s44 of the Constitution:

Any person who:

(i) is under any acknowledgment of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power; or

(ii) is attainted of treason, or has been convicted and is under sentence, or subject to be sentenced, for any offence punishable under the law of the Commonwealth or of a State by imprisonment for one year or longer; or

(iii) is an undischarged bankrupt or insolvent; or

(iv) holds any office of profit under the Crown, or any pension payable during the pleasure of the Crown out of any of the revenues of the Commonwealth; or

(v) has any direct or indirect pecuniary interest in any agreement with the Public Service of the Commonwealth otherwise than as a member and in common with the other members of an incorporated company consisting of more than twenty-five persons;

shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.

Re Canavan resolved seven challenges under ground (i) (dual citizenship), Re Culleton No 2 a challenge under ground (ii) (criminality), Re Nash No 2 a follow-up challenge to one of the successors of one of the Citizenship 7 under ground (iv) (office of profit under the Crown) and Re Day No 2, a challenge under ground (v) (pecuniary interest.) (Ground (iii) on bankruptcy has only been considered once by the High Court, three decades ago.)

However, the Court began this year with six more election challenges on its books. While no major judgments have since been published, there has been a lot of activity and plenty of diversions in these matters in recent weeks. So, where are they now?

  • David Feeney is challenged under ground (i) (dual citizenship.) He initially disputed the challenge, arguing that he renounced his British citizenship a decade ago. If the challenge had gone ahead, it would have raised very interesting questions of how to resolve such disputes absent official documentary evidence. However, Feeney has now resigned from his seat and announced that he would not recontest it, presumably rendering the court dispute  moot because there will have to be a by-election regardless. While the by-election is going ahead, there are no reports to date of any formal order by the High Court dealing further with the referral.
  • Katy Gallagher is challenged under ground (i) (dual citizenship.) She says she was eligible to be elected in 2016, because she either renounced British citizenship by then or at least fell within the ‘reasonable steps’ test that the High Court has written into s44. As noted here, the parties’ arguments turn in part on expert evidence about UK citizenship law. On Monday, Kiefel CJ referred a preliminary matter about that evidence – whether those experts are only allowed to opine on the content of UK citizenship law or are also permitted to opine on how it would likely be applied in a UK court (for example, if Gallagher had sought to order the UK authorities to renounce her citizenship speedily) – to the Full Court for a hearing in March. Presumably, once that dispute is resolved, the experts will testify and then there’ll be a further hearing to determine the validity of Gallagher’s election. Any resolution seems to be several months away.
  • David Gillespie is challenged under ground (v) (pecuniary interest), but the Full Court is currently mulling over a preliminary matter. Unlike the other fourteen challenges to MPs’ elections  in the 2016 term (which were referred to the Court by a house of Parliament), this challenge is a private action under the federal ‘common informer’ statute. Late last year, the High Court heard arguments on two general issues about such actions: whether the Court can order the production of documents in  and whether the Court can rule on the validity of an election. The Court’s decision in those issues has been reserved for two months, and presumably will be published in March. If (and only if) the Court rules that it can determine the validity of an election (and the action continues), then the Court will have to hold a further hearing (presumably before a full court in April) on whether Gillespie’s ownership of a shopping centre with a sub-lease to Australia Post breaches s44(v).
  • Skye Kakoschke-Moore is challenged under ground (i) (dual citizenship.) While that challenge was uncontested, Kakoschke-Moore raised complications about how her successor should be determined: she had speedily rid herself of her British citizenship (and was now eligible to be elected ) and Tim Storer (the likely winner of any recount that excluded her) was no longer in the party he was listed in on the Senate ballot. Justice Nettle reluctantly referred these questions to the full court, which yesterday morning speedily answered them-  Kakoschke-Moore is still excluded from any recount, while Tim Storer is not – and Nettle J immediately ordered a recount in those terms. The matter may not be over, however, as the High Court itself has flagged a novel argument that a recount that replaced a Nick Xenophon Team member with an independent may ‘distort the true intentions of voters’ in South Australia (presumably those who voted ‘above the line’ for NXT.)
  • Jacquie Lambie is challenged under ground (i) (dual citizenship.) While that challenge was straightforward, the Court hit a snag in endorsing the result of the recount, because the recount threw up the name of Steve Martin, who was (and remained) Mayor of Devonport since the election. After Martin’s eligibility was challenged by another Tasmanian Senate candidate, the Full Court considered whether Martin was disqualified under ground (iv) (office for profit under the Crown.) At the end of a hearing held last Monday, the Court unanimously dismissed the challenge (with reasons to follow.) Last Friday, Nettle J declared Martin elected to the Senate (dismissing the relevance of media reports that Martin may have since been expelled from the Jacquie Lambie Network.)
  • Stephen Parry is challenged under ground (i) (dual citizenship). While that challenge was straightforward, Nettle J hit a snag when ordering a recount, because Parry was a Tasmanian Senator and there was a slim possibility that the result of any recount that excluded him could be affected by whether or not Steve Martin, also on the Tasmanian ballot, was on the recount as well. While this possibility could have been tested immediately by ordering various alternative recounts and comparing the results, the Australian Electoral Commission baulked, saying that ‘hypothetical’ recounts were contrary to its statutory charter. Justice Nettle asked the parties to consider finding someone else to do the recount, but the issue evaporated when Martin’s status was resolved last week. The resulting recount gave Parry’s seat to Richard Colbeck, and Nettle J declared him elected last Friday.

To sum up, three of the six cases are over: one (Feeney) is moot, another (Parry) is decided and a third (Lambie) is decided (but with reasons to come. There is also a possibility that the issue of whether Martin should get a three-year or six-year term will return to the Court at some stage.)  Of the other three, one (Kakoschke-Moore) is almost over (but with reasons to come) while two more (Gallagher and Gillespie) are bogged down in preliminaries.

I’ve previously noted Kiefel CJ’s possible frustration with these s44 matters. There have been two further signs of the Court’s frustration since then. Last Friday, Nettle J, when declaring Steve Martin’s elected, explained his refusal to delay that order because of Martin’s possible change of party membership using strong words:

The uncertainty caused by Ms Lambie submitting herself for election on 2 July 2016, when she was incapable of being elected, has gone on for too long. There must be an end to uncertainty caused by persons putting themselves forward for election when they are incapable of being elected and a return to regularity and order.

Yesterday morning, the Full Court’s dismissal of Kakoschke-Moore’s arguments were accompanied by an unusual lack of words. After talking appearances, Kiefel CJ commenced the hearing with ‘Yes, Mr Jackson’, a reference to David Jackson QC, counsel for Kakoschke-Moore. Neither she nor any other judge spoke for the next hour, while Jackson spoke uninterrupted. While this can be a good sign – as judges will usually identify arguments that don’t convince them –  it wasn’t in this case. The instant he finished, the Court adjourned for four minutes and then dismissed Kakoschke-Moore’s arguments, without hearing from the other parties to the referral. The silence (video here) could be interpreted as a message about the weakness of Jackson’s points. We may (or may not) learn more when the Court issues its reasons.

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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.

15 thoughts on “News: State of play in the Court of Disputed Returns

  1. The argument in Kakoschke-Moore was preposterous. There’s no law preventing people from leaving the party which they were in when they were elected; whatever the ethics of it, it is an accepted part of Australian politics and not contrary to law. I was surprised they ran it and not surprised the Court has dismissed it as swiftly as they could within the bounds of propriety.

    The Gallagher case is the key one, the issue the Court should have but didn’t resolve (or at least issue strong dicta on) through the vehicle of the Re Canavan judgments, as it will be relevant to politicians of both parties who have not yet been referred. That’s the one they should expedite to give certainty to this whole mess.

  2. I agree the SKM argument was a non-starter, but not because of Australian party political norms, but rather because the High Court has always seen its disputed returns role as about legal compliance and technical orders, not democracy. It’s possible to imagine an alternative reality where the Court gave primacy to what voters’ wanted (e.g. voting for a party, not at all interested in disqualifications) and did what SKM wanted (a recount of all now eligible people that emphasises the overwhelming primacy of above-the-line voting in the Senate.) But that course was foreclosed long ago in cases like Wood, and led to silliness like Nash 2 instead. That being said, the Court itself has flagged the possibility that the special count might ‘distort’ voters’ intentions too much. It’s hard to see why that argument would succeed where SKM’s failed, but perhaps the Court wants to signal that there are democratic limits to what it’s willing to order in disputed returns cases.

    • Yes, absolutely agree- the reference to Australian political norms was just why it was obvious the novel SKM argument was never going to fly to overcome the clear black letter law reading of the situation. They wanted the High Court to take a purposive approach to implement a purpose which isn’t there and has never been there. Their argument was “it’s the vibe” in a situation where it wasn’t even the vibe…

    • The Court of Disputed returns is not a chapter III court with section 364 and 368 of the Electoral Act shackling it. And section 163 flying in the face of Section 34 Constitution. Right up until 1991 section 34 prevailed, when the labour party sabotaged the Constitution by redefining the Commonwealth.
      Section 364 Electoral Act takes away any technicalities in law to be exercised by the Court of Disputed returns, and 368 defies any logic at all. Culleton is on to this and is challenging all the ultra vires legislation including section 7 Bankruptcy Act 1966, which flies in the face of section 49 Constitution.

  3. So, Jeremy, does that mean you’ve effectively cancelled the remark above that “The matter may not be over, however..” because of the argument that Storer is no longer a member of NXT? It pretty clearly *is* over because poor old David Jackson devoted a good part of his monologue to pushing it and no 3 in the Court’s orders was “Timothy Storer should not be excluded from the special count.”

    As to reasons, the Court can justify such an outcome without recourse to political practice or democratic theory by citing sub-s 272(2), which makes it clear that an ATL vote is to be treated as if it was a 1,2,3,4,5 vote for the _candidates_ in that column. We may know that they are _in_ the same column because they were endorsed by a party, but under the Act, and indeed the Constitution, we are voting for candidates. This is reinforced by the commonsense argument that Arky has suggested – we know that once we have voted for the candidates of a party, they may well quit the party (and in the case of “personality” parties do so more often than not) but they remain duly-elected members, but it’s the words of s 272 that will appear in the Court’s reasons.

    *Whose law is it that’s been quoted on the Bludger, that a party named after a personality can never hold a caucus together? Seems to be true.

    • As near as I can understand it (bearing in mind that the Court’s correspondence is not public and the Court didn’t say ANYTHING during argument in the full court), the ‘distortion’ argument only arises after the special count is done (rather than Monday’s hearing, which was about how the special count is to be done.) I can’t see how the arguments are different, but the High Court seems (or at least seemed) to think they were different. We’ll find out (maybe) on Friday. And, yes, the electoral act converts above the line votes into below ones, but it’s not clear to me (at least) that the same rules apply to post-disqualification recounts. Those are done according to an unpublished schedule that sets out various rules (I think about deaths and casual vacancies and the like), but those rules are judge-made, not statute-made. I find the whole thing very ad hoc myself. But, to reiterate, most of this is not published, so it’s very tricky to analyse.

  4. Oh, and you say “the Court itself has flagged the argument” about distortion of the voters’ intention. Indeed in the previous S K-Moore hearing the argument was adverted to in a letter from the Senior Registrar, but I should imagine that she only raised it because one of the parties had done so. Registrars, even senior ones, don’t usually raise issues off their own bat!

    • My impression, which again might be wrong, was that the argument was raised by the Court, and then put to the parties by the Registrar. I can’t fathom why the Registrar would be acting as a go-between between the parties to the reference. All would be much clearer if these letters were on the public record, but I’ve tried in the past to read them (e.g. with Dickson, 2010) and was told that they are part of the private ‘correspondence’ file. That makes no sense to me.

  5. Yes, your speculation about who raised the issue could well be correct. (Judges sometimes raise issues that the parties have overlooked, and sometimes don’t.) Though I would have thought there would have been mutterings from the Xenocamp, if not references in pleadings, by then anyway. Without doing a search, I have a feeling that Xeno and SKM had raised the issue in the press by then.

    But I still think the issue has now been settled by order no 3 quoted above. I confidently predict that on Friday the AEC will announce that Storer is among the 12 successful candidates and Nettle J will declare that he is duly elected without referring any further questions. Then when the Court gives its reasons they will say that a recount simply looks at the preferences as recorded on election day and ATL votes are taken to be votes down the BTL column, so the fact that Storer ceased to be a Xenofellow sometime after the poll is just irrelevant. Betcha!

  6. Btw, although I’ve picked an argument with you over one issue, thanks very much for doing this annotation, effectively, of s 44. I’ve been thinking so many cases had accumulated that I’d better make a list before I started forgetting some of them. You’ve done it for me – and for everyone else. Good on ya.

  7. If you are reading this non-professional (unprofessional?) comment, please know that I am grateful to Jeremy and/or the other moderators for allowing it to be uploaded.
    Well before Kiefel CJ handed down her Re Feeney decision last Friday, Jeremy had asserted that with all parties agreeing David Feeney was not eligible for election and with Feeney having resigned from the HoR “there will have to be a by-election”. Jeremy knows the law and was no doubt drawing on Court established law for dealing with an ineligible returned candidate for the HoR. There is indeed to be a by-election. I am not sure why the necessity of a by-election is or should be the Court’s imposed law.
    Kefel CJ, in answering if the HoR seat of Batman to which David Feeney had been returned had become vacant because of s 44 (i), explicitly said only that the seat is vacant because of s 44 (i). This is a non-answer to the question as asked, in my view. All parties had agreed that Feeney was a British citizen and unable to be elected, and Kiefel CJ concurred, so the effect of 44 (i) in its application to Feeney was merely that the vacancy that was created by the 2016 dissolution of the House continued after the return of Feeney. I contend the logically correct answer to the question was “no”. However, Kiefel CJ’s implicit answer to the question was that the seat had indeed become vacant because of s 44 (i) for she went on to answer the contingently posed (contingent on a “yes” answer) question of how to fill the vacancy.
    Keifel CJ did not provide her reasons for ordering the by-election but presumably they would be similar to those of the Court in Re Joyce: “it was common ground, and consistent with authority, that in the event that Mr Joyce MP was incapable of being chosen as a member of the House of Representatives, the election of Mr Joyce MP was void, and a by-election must be held in order to elect the member for New England”. The authority was said to lie in the judgments on Sykes v Cleary, Free v Kelly and In Re Wood.
    While challenging the authority of the Court is futile unless one, as a party, can convince the Court there was actual error in the earlier judgments, it is hard (at least for me as a spectator) to accept the 2016 Batman election miscarried so as to make it impossible to identify a validly chosen Member from that election. There was nothing before the Court in Re Feeney identified as an error in the conduct of the election and indeed there had been no evidence before the Court in Re Joyce, Sykes v Cleary, Free v Kelly or In Re Wood of such error. In the 2016 Batman election, there were several valid nominations of persons who were eligible for election. Voters (compulsorily) were supposed to indicate their preference orderings for these candidates and, as it happens, also had to reveal their relative preference for an ineligible candidate. As interpreted by the Court, Australian law allows disqualified candidates to be listed on a ballot paper without causing the election to miscarry. Voters cannot assume all candidates are eligible. No matter, their preferences for eligible candidates are recorded when they vote. The Commonwealth Electoral Act (s 268 (3)) stipulates that a formal ballot paper“shall be given effect to according to the voter’s intention so far as that intention is clear”. In the absence of anything explicit in the CEA about how to deal with an ineligible candidate, the Court has endorsed (at least for some Senate elections) an approach of treating as a nullity the indicated preference for any ineligible candidate who would be returned were the candidate eligible, and renumbering all lower order preferences in sequential revealed order of preference before counting. The only “reason” the authorities have put forward for not always doing this is that the election result may in some cases not then reflect the true legal intent of voters. Unless there is some plausible reason to doubt voters’ preferences over eligible candidates expressed in the presence of an ineligible candidate, the election has not miscarried. It is to be noted that it is the Court’s view that if an eligible candidate wins with an ineligible candidate failing (even by the barest of margins, eg one vote) the presence of the ineligible candidate on the ballot paper would not cause the election to miscarry. In that situation, no doubt is entertained about the voters’ recorded preferences over eligible candidates. Why then should there be doubt about those preferences when the ineligible candidate would be validly returned if he or she were in fact eligible, so much doubt in fact that the voters are to be denied by the Court their choice amongst the eligible candidates who stood at the election? It seems to me the Court’s solution to the problem of an invalidly returned ineligible candidate rests on a spurious, contingent (on who wins) problem of imagined unstable preferences in the presence of additional candidates in an election. Can anyone shed light on precisely why the 2016 Batman election miscarried other than the trite answer that the Court (implicitly) determined it did?

    • It’s definitely a case of the true intent of the voters not being respected if the winner of a HoR seat is disqualfied under s44, because unlike the Senate there is no second and third person from the same party as the disqualified Member to receive the preferences.

      Take a hypothetical seat where only 2 candidates are standing (it does sometimes happen) or even 3, one each from the ALP, Liberals and the Greens. Say the Liberal candidate won with 55% of the two party preferred vote, and was then disqualified under s44. Pretending that electing the second preference party here (whichever it ends up being) would reflect the will of the voters would be a complete legal fiction.

      • I appreciate from where you are coming, but “definitely”? I am not so sure.

        Why should the fact that the majority of electors would prefer an ineligible candidate, were he or she eligible, be elected over the eligible ones mean the election has miscarried? The reality is, the preferred person was not one who was legally capable of being elected. The nominating party/persons made a mistake in not doing its/their due diligence and in putting forward an ineligible person. Why does “true legal intent” extend to electing ineligible persons? If this mistake by a candidate is sufficent to cause an election to miscarry, do other mistakes also cause miscarriage? For instance, if it is recognized in hindsight that had a party chosen a stronger, higher integrity candidate rather than one who became somewhat tainted by scandal after nominations closed , the voters would have elected such a candidate rather than just failing to elect their actual candidate? Or of Malcolm Turnbull were to fail to have his nomination or nomination fee submitted on time so that there were no Liberal candidate in the well recognized safe Liberal seat of Wentworth, should there be a second election to correct this mistake in order to fulfil the true legal intent of the electorate?

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