News: The High Court and the federal election

The just announced federal election on 18th May 2019 doesn’t directly affect the High Court of Australia (as opposed to the other two branches of the federal government) but it indirectly affects it in several ways. First, elections are often preceded by election-related challenges, as occurred in three of the last four elections:

  • in 2007, the Court struck down legislation barring all prisoners from voting.
  • in 2010, the Court struck down legislation removing the 7 day ‘statutory grace period’ allowing people to enrol after an election is called.
  • in 2016, the Court rejected an argument that the 7 day statutory grace period should extend until election day and also rejected a challenge to the new Senate voting rules aimed at stopping preference harvesting.

Consistently with this trend, a directions hearing last week explored a narrow pre-election challenge concerning the 2019 election, specifically when the Australian Electoral Commission can release who it predicts are the two most likely candidates to win in each House of Representatives seats. A past lower house MP, Clive Palmer – you may have seen an ad or two by him recently – wants to bar such information from being released in some east coast seats when polls close there, because of the possibility that the AEC’s predictions could influence voting on the west coast where polls would remain open for two hours more. Justice Gordon tentatively scheduled a full court hearing for 6 May, under two weeks before the election but enough time for a speedy instruction to the AEC. However, whether the case will actually go ahead depends on whether the parties can agree on the facts and, as the Commonwealth Solicitor-General foreshadowed, whether Palmer himself or a lesser known person will be nominating for an east coast lower house seat.

However, the greatest impact of the federal election on the High Court is likely to come after the poll, when the Court sits as the Court of Disputed Returns to hear challenges to the announced election result. The Court of Disputed Returns may hear challenges to the polling or counting process, for example when Hayne J declared the 2013 election of Western Australian senators void due to the AEC’s loss of 1370 ballot papers. But, more likely, they will involve claims that seemingly elected MPs are constitutionally disqualified, as occurred (and often succeeded) throughout the 45th Parliament. Those bruising events will undoubtedly prompt close scrutiny of the qualifications of nominees for the 46th Parliament, which may head off some problems as major parties ‘vet’ their candidates more effectively, but may also prompt much closer scrutiny of nominees, both before and after the election. Importantly, the Court’s ruling last year in Alley v Gillespie places everyone on notice this time that the only ways an elected MP’s can be challenged on this basis without a referral from a house is a petition the High Court ‘within 40 days after‘ the return of the writs (28 June.)  So, by the end of July, the Court will know exactly how many such petitions it will have to resolve in the second half of 2019.

Finally, the election will also decide whether a Morrison or Shorten government will appoint new High Court justices to fill any vacancies that arise in the next three years. The last five parliaments have seen nine vacancies: two per parliament, except for the last one, when there was only one that Malcolm Turnbull filled with a relatively young judge who may remain on the Court until 2044. The next government will appoint at least two new judges to replace the two oldest current ones, Geoffrey Nettle and Virginia Bell. Further appointments may be prompted by early retirements, as last occurred in the first Howard government, which appointed three justices, including two due to early retirements. One possibility this time is Patrick Keane, who must retire later in 2022 anyway. In sharp contrast to the US, the ability of a new government to ‘shape’ the apex court is rarely (perhaps never) an election issue in Australia. Few would know that the current High Court features four coalition-appointed justices and three ALP-appointed ones, or care that a Shorten win would ‘flip’ the Court to an ALP majority, undoubtedly because such political characterisations of justices are rarely predictive of their decisions. That being said,  it is certainly possible to name some famous past justices – e.g. Lionel Murphy, Michael Kirby, Ian Callinan and Dyson Heydon – who owe their place on the Court largely to the outcome of the preceding election.

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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.