The High Court, sitting as the Court of Disputed Returns, has decided a matter referred to it by the Senate over the eligibility of two South Australian senate nominees. Skye Kakoschke-Moore and Timothy Storer who were third and fourth in the Nick Xenophon Team order of senate candidates for the 2016 federal election. Following that election, on 4 August, Kakoschke-Moore was returned as a senator for South Australia. On 3 November 2017, NXT resolved to expel Storer from the party, and by 6 November he purported to resign from the party. On 22 November, Kakoschke-Moore resigned as a senator after receiving confirmation from the United Kingdom Home Office that she was a British citizen. The Senate then resolved on 27 November to refer to the High Court the question of whether, by reason of s 44(i) of the Constitution, which provides that any person who is a subject or citizen of a foreign power shall be incapable of being chosen as a senator, there was a vacancy in the Senate for the place for which Kakoschke-Moore was returned. On 30 November, Kakoschke-Moore submitted the form to renounce her UK citizenship, and received confirmation on 6 December from the Home Office that her renunciation was effective on that date.
On 24 January 2018, Nettle J declared that Kakoschke-Moore was incapable of being chosen or sitting by reason of s 44(i). Nettle J also reserved three further questions for the Full Court’s determination, which the Court answered on 13 February (see order below), delivering its reasons on 21 March.
The Court unanimously held that the vacancy left by Kakoshcke-Moore should be filled by a special count of the votes cast on 2 July 2016; that Kakoschke-Moore’s renunciation of her British citizenship in December 2017 does not render her capable of now being chosen to fill the vacancy; and that Storer should not be excluded from the special count.
On questions one and two, the Court rejected Kakoschke-Moore’s contentions that the Court should declare her elected because she has now renounced her British citizenship and is now no longer incapable of being chosen (see –), and that, in the alternative, if a special count is ordered then she should not be excluded from it (at –): these arguments fail because they do not appreciate that her incapability of being chosen on 2 July 2016 makes her incapable of being chosen by a special count, because that count’s purpose is to complete the electoral process of 2 July (at ff). The Court emphasised that the special count is part of the electoral process, and is not a new, separate electoral process in which a new choice is made (at ), and that this case was not distinguishable from Re Nash (No 2) (at –).
Turning to the third question, the Court noted that the purpose of the special count is to identify the ‘true legal intent of the voters’, which is ‘no more or less than what is apparent from the valid ballots’ (at ff). The provisions of the Electoral Act 1918 (Cth) around party nominations and ordering do not require that any candidate endorsed by a party much maintain his or her affiliation with the party to be duly elected: the Act leaves that relationship as a matter between candidate and party, and ceasing to be a member of an endorsing party has no effect on the validity of votes cast for that person (at , ). Consequently, Storer’s later expulsion or resignation cannot affect the intention informing the votes cast on 2 July 2016, and it is necessary that he be included in the special count (at –).
|High Court Judgment|| HCA 10||21 March 2018|
|Result||Kakoschke-Moore’s vacancy to be filled by a special count; Kakoschke-Moore’s renunciation of British citizenship in December 2017 does not render her capable of now being chosen to fill the vacancy; Storer should not be excluded from the special count|
|High Court Documents||Kakoschke-Moore|
|Hearing, Nettle J|| HCATrans 16||13 February 2018|
|Full Court Hearing|| HCATrans 15||13 February 2018|
|Determination, Nettle J|| HCATrans 2||24 January 2018|
|Hearings, Nettle J|| HCATrans 254||8 December 2017|
| HCATrans 253||8 December 2017|
The questions reserved for the consideration of the Full Court under s 18 of the Judiciary Act 1903 (Cth) be answered as follows:
Should the vacancy in the representation of South Australia in the Senate for the place for which Skye Kakoschke-Moore was returned on 4 August 2016 be filled by a special count of the votes cast at the poll on 2 July 2016 or by some other, and if so what, method?
The vacancy in the representation of South Australia in the Senate for the place for which Skye Kakoschke-Moore was returned on 4 August 2016 should be filled by a special count of the votes cast at the poll on 2 July 2016.
Notwithstanding that as at 2 July 2016 and until on or about 6 December 2017 Skye Kakoschke-Moore was a British citizen, and, therefore, incapable of being chosen as a senator, does the fact that she renounced her British citizenship with effect from on or about 6 December 2017
render her capable of now being chosen to fill the vacancy by means of a special count of the votes cast on 2 July 2016?
The fact that Skye Kakoschke-Moore renounced her British citizenship with effect from 6 December 2017 does not render her capable of now being chosen to fill that vacancy.
If the vacancy is to be filled by a special count of the votes cast on 2 July 2016, should Timothy Storer be excluded from the special count by reason that, whereas at the time of the poll on 2 July 2016 he stood for election in a group of candidates that was accepted by the Australian Electoral Officer on behalf of the Nick Xenophon Team party, he ceased to be a member of that party on or by 6 November 2017?
Timothy Storer should not be excluded from the special count.