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.