The High Court, sitting as the Court of Disputed Returns, has decided a special case referred to it by the Senate and the House of Representatives on the question of eligibility of six Senators and one MP under s 44(i) of the Constitution: Senators Matthew Canavan, Malcolm Roberts, Fiona Nash, and Nick Xenophon, the Hon Barnaby Joyce MP, and Scott Ludlam and Larissa Waters (former Senators who resigned on discovering that they may have been ineligible). In each case, material had emerged that these representatives held dual citizenship at the time that they were nominated for election. The Court permitted former MP Tony Windsor to appear as a party to the Joyce matter, and also permitted an amicus curiae to appear as contradictor in the matters of Canavan, Nash and Xenophon (on both, see at [7]).

Section 44(i) of the Australian Constitution provides that any person who

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

On 22 September 2017, Keane J delivered a judgment on the evidence relating to Senator Malcolm Roberts’ s 44(i) matter, evaluating what Senator Roberts knew about his citizenship status at the time of his nomination and the steps he took to verify and renounce it before that nomination, and holding that he was a UK citizen prior to his recent renunciation (see below).

On 27 October 2017, the Court unanimously held that Senators Canavan and Xenophon were eligible at the time of their nomination, and that Ludlam, Waters, and Joyce, and Senators Roberts and Nash were ineligible at the time of their nomination.

Construction of s 44(i) (at [13]–[73])

After restating the text of s 44(i), emphasising that the phrase ‘shall be incapable of being chosen’ relates to the electoral process, of which nomination is a central part, and noting that s 44(i) focuses on the time between that nomination and the completion of the electoral process (at [1]–[3]), the Court recounted the chronology of the referrals and proceedings (see [4]ff). Turning to the different approaches to construing s 44(i), the Court noted (at [13]) that of the various competing submissions, only those made by the amicus contradictors and on behalf of Windsor gave s 44(i) its textual meaning, subject only to s 44(i)’s implicit qualification that ‘the foreign law conferring foreign citizenship must be consistent with the constitutional imperative underlying’ s 44(i), namely:

that an Australian citizen not be prevented by foreign law from participation in representative government where it can be demonstrated that the person has taken all steps that are reasonably required by the foreign law to renounce his or her foreign citizenship.

The three alternatives proposed by the other parties each departed substantially from the text, particularly in contending that s 44(i) should be read to ‘impliedly contain’ a mental element that is relevant to assessing the acquisition or retention of foreign citizenship (at [13]). The first approach, argued for by the Attorney-General and adopted by Canavan, Roberts and Xenophon, was that s 44(i) required foreign citizenship be voluntarily obtained or retained, and that this implied ‘voluntariness’ element required knowledge or wilful blindess about a ‘considerable, serious or sizeable’ or a ‘real and substantial’ prospect that the person held foreign citizenship (at [14]), which thus distinguished between ‘natural-born’ and ‘naturalised’ Australians (see at [15]). The second approach, contended for by Joyce and Nash, was that s 44(i) required that foreign citizenship be chosen or maintained, likewise requiring knowledge (at [16]). The third approach, urged by Ludlam and Waters, was that s 44(i) requires a person be ‘put on notice’, namely, that a person would be disqualified if he or she had knowledge of facts that ought to call into question the belief that he or she is not a subject or citizen of a foreign power (at [17]).

The Court held that the approach contended for by the amicus and Windsor adhered most closely to the natural, ordinary meaning of the text of s 44(i) and the majority views in Sykes v Cleary [1992] HCA 60, avoids the uncertainty and instability in the alternative approaches, and that s 44(i)’s drafting history does not go against this reading (at [19]).

While Brennan J in Sykes v Cleary had stated that the text and structure of s 44 leads to three limbs of disqualification (see [20]), the Court took up the amicus’s suggestion that s 44(i) contains two limbs. On the first, ‘under any acknowledgement’ captures any person with a formal or informal acknowledged allegiance, obedience or adherence to a foreign power that the person has not withdrawn or revoked. On the second, ‘subject’, ‘citizen’ and ‘entitled to the rights’ relate to the person holding some status or rights under the laws of a foreign power (at [21], and see [23] on little turning upon the two or three limb difference). The Court then reiterated the purpose of s 44(i), as stated in Sykes v Cleary, of avoiding any representative holding a ‘split allegiance’ between Australia and another country, or some obedience to a foreign power, noting that the first limb pursues that purpose by looking to the person’s conduct, and the second limb looks to duties or obedience as an aspect of the existence of foreign citizenship status, regardless of subjective feelings of loyalty or allegiance, or any acts that might indicate split allegiance (see [24]–[26]).

The Court then held that the drafting history of s 44(i) did not support a narrower purpose that might constrain the section’s plain meaning. After reviewing the details of that history (see [28]ff), the Court noted that changes in the text during the Convention debates could not be attributed to some difference in the mischief that the disqualification sought to address, nor did it show that that mischief was focused exhaustively on an ‘act’ done by a person to make them the subject or citizen, or entitled to rights or privileges of subjects or citizens, of a foreign power (at [35], and see [36]).

Turning then to the role of foreign law in determining whether a person has the status of a subject or citizen of a foreign power, the Court held that that status depends only and exclusively on the law of the foreign power (see [37]). Noting that a foreign law cannot be ‘determinative’ of s 44(i)’s operation, and that a court will not apply the section to disqualify where that would undermine the system of representative and responsible government (at [39]), and examining the other qualifications requirements (at [40]ff), the Court emphasised that s 44(i)’s purpose ‘neither requires nor allows the denial by foreign law’ of the entitlement of people to participate in the system of government by running for office (at [43]). The Court then reiterated the point made in Sykes v Cleary that while it might be wrong to disbar a citizen who had taken ‘all reasonable steps’ to divest himself or herself of allegiance to a foreign power, making such a reasonable effort does not exempt a person from the requirements of s 44(i) (at [44]–[46]).

Moving to the question of a person’s knowledge of foreign citizenship, the Court emphasised that the text of s 44(i) makes no reference to knowledge (at [47]), and that to require proof of knowledge for s 44(i) to operate goes against the stability of representative government (at [48]):

Stability requires certainty as to whether, as from the date of nomination, a candidate for election is indeed capable of being chosen to serve, and of serving, in the Commonwealth Parliament. This consideration weighs against an interpretation of s 44(i) which would alter the effect of the ordinary and natural meaning of its text by introducing the need for an investigation into the state of mind of a candidate.

The Court noted that the Attorney-General’s approach echoed that of Deane J in Sykes v Cleary, in its requirement of voluntary allegiance and incorporating some mental element (at [49]). The Court then critiqued and rejected Deane J’s reasoning, stating that his Honour’s approach found no support in the text and structure of s 44(i), and indeed used the first limb to alter the ordinary and natural meaning of the second, which rendered ‘that limb otiose because, so understood, it adds nothing to the first limb in terms of the practical pursuit of the purpose of s 44(i)’ (at [52], and see [53]). The Court also noted that there was ‘force’ to Windsor’s submission that the loyalty requirement should not depend on the diligence with which a candidate observes the requirements of s 44(i): ‘To introduce an issue as to the extent of the knowledge obtained by a candidate and the extent of the candidate’s efforts in that regard is to open up conceptual and practical uncertainties in the application of the provision. These uncertainties are apt to undermine stable representative government.’ (at [54]).

The Court then explored the conceptual difficulties around the nature and extent of knowledge that might be required. The text of s 44(i) cannot provide any clear guide to the point on a spectrum — ranging from ‘faintest inkling’ through suspicion, reasonable belief, moral certainty to absolute certainty — which would be required for some knowledge requirement in s 44(i) to be met (at [54]). The Court stated (at [56]):

The conceptual difficulty may be illustrated by considering the following questions. Does a candidate who has been given advice that he or she is “probably” a foreign citizen know that he or she is a foreign citizen for the purposes of s 44(i)? Is the position different if the effect of the advice is that there is “a real and substantial prospect” that the candidate is a foreign citizen? Does a candidate in possession of two conflicting advices on the question know that he or she is a foreign citizen for the purposes of s 44(i) only when the advice that he or she is indeed a foreign citizen is accepted as correct by a court?

The Court then turned to these conceptual deficiencies in the submission of the parties contending for a knowledge requirement. The Attorney-General’s focus on ‘voluntary acts’ partly avoids these problems, but ultimately still leads to a knowledge problem in its reliance on an ‘unstable distinction between overt voluntary acts and conscious omissions’ (at [57]). The approach urged by Joyce and Nash does include these difficulties of proving or disproving states of mind, in particular the ‘regrettable possibility of a want of candour on the part of a candidate or sitting member whose interests are vitally engaged’, as well as the difficulty that a person who discovers that he or she holds foreign citizenship and is allowed a period to take reasonable steps to denounce it will, nonetheless, still hold dual citizenship, which cannot be reconciled with the purpose of s 44(i) (at [58]–[59]). (The Court did not directly address the ‘put on notice’ approach here, but did explicitly reject it at [70].)

The Court concluded by noting that while it may seem harsh to disqualify an Australian-born candidate who never thought he or she was anything but exclusively an Australian citizen, nomination for election is ‘an occasion for serious reflection on this question’ and a positive declaration that a person is not ineligible (at [60]). Moreover, a referral over a disqualification question can be made only where the facts that might establish it have been brought forward in Parliament, and, consequently, those facts must always, necessarily, have been knowable: ‘A candidate need show no greater diligence in relation to the timely discovery of those facts than the person who has successfully, albeit belatedly, brought them to the attention of the Parliament.’ (at [60]).

Moving to the question of reasonable steps, the Court emphasised that the text of s 44(i) is not concerned with negligent failures or reasonable efforts to meet its requirements, but rather is cast ‘in peremptory terms’ (at [61]). Sykes v Cleary provides no support for the arguments that a person contravenes s 44 only if that person knows he or she is a foreign citizen and fails to take reasonable steps to divest himself or herself of that status, or if that person does not know he or she is a foreign citizen, and fails to take any steps (see at [62]–[67]). Instead, the plurality in Sykes v Cleary did state that the steps reasonably available to a candidate to free himself or herself from foreign ties did depend on “the situation of the individual, the requirements of the foreign law and the extent of the connexion between the individual and the foreign State”‘: in that case, it required not just a formal denouncement of foreign allegiance at a naturalisation ceremony, but also at least an application to the foreign government to release the person from their citizenship (at [68], and see at [69] on foreign government requirements that might be ignored).

The Court then summarised its position on the construction of s 44(i) (see at [70]–[72]), and turned to apply it to each reference.

Senator Canavan (at [74]–[87])

Canavan was born in Australia, and his only link to Italy was through his maternal grandparents, who were were naturalised as Australian citizens in the 1950s, at which point, under Italian law, they ceased to be Italian citizens: ‘When Senator Canavan was born, his parents and grandparents were Australian citizens and only Australian citizens’, and Canavan has neither visited Italy nor taken steps to acquire Italian citizenship (at [74]–[76]). After Canavan’s mother told him on 18 July 2017 he may have been registered as an Italian citizen in 2006, after she had applied for Italian citizenship, he contacted the Italian consulate and was told that he had been registered as an ‘Italian citizen abroad’ in 2006 (at [78]). He then took steps to renounce his Italian citizenship, which took effect on 8 August 2017 (at [79]). A report by two Italian lawyers submitted to the Court stated that Canavan’s status as an Italian citizen would depend not on his mother’s application but his maternal grandmother’s, because at the time of his mother’s birth, his grandmother had not yet renounced her Italian citizenship, and, following a 1983 Italian Constitutional Court decision, Canavan became an Italian citizen ‘retroactively’ through the maternal line, which was not broken by his mother’s marriage to an Australian (see at [80]ff). Nonetheless, the report also stated that registration as a citizen is a ‘separate and more rigorous process’, and that Canavan’s mother’s application for registration was made in her own interest: the registration of Canavan and his siblings occurred at the consulate’s initiative (at [83]). Registration is distinct from a declaration of Italian citizenship, and further administrative steps must be taken to activate the ‘potential’ right of citizenship, which Canavan had not sought (see at [84]–[85]). The Court held that this evidence could not establish that Canavan was a citizen of Italy, and the report suggested he was not: consequently, the Court answered the s 44(i) question in Canavan’s matter as ‘no’ (at [86]–[87]).

Mr Ludlam (at [88]–[92])

Ludlam was born in New Zealand in 1970, moved to Australia in 1973 and was naturalised as an Australian citizen in 1989. Ludlam believed that upon naturalisation he was exclusively an Australian citizen and held no other citizenship (at [90]). In July 2017, he was informed he might still be a New Zealand citizen, and, after making inquiries with the NZ High Commission, was informed that he was a dual citizen, after which he resigned his Senate seat (at [89]). Ludlam does not dispute that his New Zealand citizenship, while unknown to him, disqualified him. The Court received a report from a New Zealand barrister, which stated that New Zealand law made him a citizen at birth, and that he may only lose his citizenship by renouncing it or by ministerial order, and the naturalisation ceremony did not constitute renouncement (at [91]). Consequently, Ludlam still held NZ citizenship at the time of his nomination and was thus incapable of being chosen (at [92]).

Ms Waters (at [93]–[98])

Waters was born in Canada in 1977 to Australian parents who were not permanent residents or citizens of Canada, and returned to Australia in 1978 (at [94]). Waters has never held a Canadian passport or visited Canada since leaving, and has never exercised any rights as a Canadian citizen or applied for citizenship (at [95]). Following Ludlam’s resignation, Waters sought advice from the Canadian Government on her citizenship status, and was informed that she was a Canadian citizen, and subsequently also resigned from the Senate before taking steps to renounce that citizenship (at [96]). The Court received a report by a practising Canadian lawyer which indicated that Canadian law at the time of Waters’s birth a person born in Canada is a natural-born Canadian citizen, and that that status could only be affected by renunciation (at [97]). Consequently, at the time of her nomination, Water was ineligible to be chosen (at [98]).

Senator Roberts (at [99]–[103])

Roberts was born in India to a Welsh father and Australian mother in 1955, registered in the High Commissioner’s Record of Citizens of the United Kingdom and Colonies, and later moved to Australia and was naturalised in 1974 (at [100]). Keane J found that Roberts was a citizen of the United Kingdom by descent at the time of his nomination for election as a senator, and that Roberts knew there was a real and substantial prospect that prior to May 1974 he had been and remained a UK citizen, which ceased only on his renunciation in December 2016 (at [101]–[102]). Consequently, Roberts was ineligible to be chosen (at [103]).

The Hon Barnaby Joyce MP (at [104]–[111])

Joyce was born in Australia  in 1967 to an Australian mother and a New Zealander father, who in 1978 became a naturalised Australian citizen, which Joyce understood meant that at that point his father had became solely an Australian citizen (at [105]). After reports that he might be a dual citizen, in August 2017 Joyce met with the New Zealand High Commissioner, who stated that he was a citizen of New Zealand by descent. Joyce then received advice from a New Zealander barrister confirming that position, after which he completed a declaration of renunciation (at [108]). The opinion of a second New Zealander barrister was tendered before the Court by Windsor. Both barristers agreed that Joyce was a citizen of New Zealand up and until his renunciation, and his citizenship by descent did not depend on registration or any other formality (at [109]). Joyce’s father’s renunciation operated prospectively and only with regards to his own status: it did not affect Joyce’s status (at [110]). Consequently, Joyce was ineligible to be chosen as a member of the House of Representatives (at [111]).

Senator the Hon Fiona Nash (at [112]–[119])

Nash was born in Australia in 1965 to a Scottish father and an Australian mother, and while she had little contact with her father until later in his life, Nash was aware that he was a UK citizen and that her sisters, who were born in England, were also UK citizens (at [113]). Following Joyce’s statement to the House of Representatives on his status, Nash sought advice from the UK Home Office, and was advised that, in their view, she was a British citizen (at [115]). After receiving further legal advice from a British barrister, also concluding that she was a British citizen, in August 2017 she renounced her British citizenship and received confirmation that she was no longer a British citizen (at [115]). That legal advice was tendered before the Court, and stated that as Nash’s father was born within the Crown’s dominions and allegiance he was a natural-born British subject. The nature of this status, however, underwent several changes in the law: a 1948 change made him a citizen of the UK and colonies ‘otherwise than by descent’; a 1973 change gave him the status of ‘patriality’ or holding the ‘right of abode in the UK’; and a 1983 change made his status ‘British citizen otherwise than by descent’ (see [116]–[117]). Because Nash was born outside the UK to a father who was a UK citizen otherwise than by descent, she became a UK citizen by descent at birth; in 1973 she acquired the right of abode; and, following the 1983 change, she became a British citizen (at [118]). Consequently, she was incapable of being chosen by reason of s 44(i) (at [119]).

Senator Xenophon (at [120]–[135])

Xenophon was born in Australia in 1959 to Greek mother and Cypriot father who had emigrated in the 1950s and were naturalised, respectively, in 1965 and 1963, at which point they both renounced their allegiance to all other foreign sovereigns (at [121]). Prior to his election to the South Australian Legislative Council, Xenophon wrote to the Greek Embassy and High Commission of Cyprus to renounce any right of citizenship (at [122]). After suggestions that he might hold some form of British citizenship arising from the fact that Cyprus was a British possession at the time of his father’s birth in 1931, it became clear that, at the time of his nomination to the Senate, Xenophon was a ‘British overseas Citizen’, a status which he later renounced (at [123]).

The Court held that as a BOC, Xenophon was not disqualified under s 44(i) because he was not properly a ‘subject or citizen of a foreign power’ or entitled to the rights and privileges of one, but rather held a ‘residuary form of citizenship’ (at [124], [134]). The report received by the High Court, detailing the changes in British citizenship forms and processes of reclassification following changes in the structure of the United Kingdom and its overseas territories (see at [125]ff), stated that Xenophon’s father did not cease to be a UK citizen otherwise than by descent when Cyprus gained independence in 1960 because he was not ordinarily resident there five years prior to the date of independence: consequently, he did not have the right of abode in the UK following the change in the law in 1973 (noted above) until the law was changed again in 1983 (noted above), at which point Xenophon’s father was reclassified as a BOC (at [128]). At the time of his birth, Xenophon became a citizen of the UK and colonies by descent, but because he did not hold a right of abode following the 1973 change, when the 1983 change came into effect he was reclassified as a BOC (at [129]).

The Court held that BOC status is a residuary form of nationality, differing from full citizenship in two significant ways. First, BOC status does not include the right of abode in the UK, a central characteristic of a ‘national’ under international law, the absence of which means Xenophon cannot enter the UK without satisfying the requirements of immigration control (at [131]–[132]). Second, it does not require a pledge of loyalty to the United Kingdom or its monarch (at [133]). While Xenophon does have a juridical relationship with the UK, in this instance that relationship does not make him a citizen or subject of a foreign power for the purposes of s 44(i):

No party contended that the fact that the foreign power designates a status as that of ‘citizen’ is determinative without consideration of the rights, privileges and obligations conferred under the law of the foreign power. The status of BOC distinctly does not confer the rights or privileges of a citizen as that term is generally understood: a BOC does not have the right to enter or reside in the United Kingdom. Critically, taking into account the purpose of s 44(i), which is to ensure that members of the Parliament do not have split allegiance, it does not appear that Senator Xenophon’s status as a BOC entailed any reciprocal obligation of allegiance to the United Kingdom per se or to Her Majesty the Queen in right of the United Kingdom.

Consequently, Xenophon was neither a subject or citizen of the UK nor entitled to the rights and privileges of a subject or citizen of the UK, and was thus validly elected (at [135]).

Filling the Vacancies (at [136]–[139])

In the matters of Nash, Roberts, Waters and Ludlam, the Court ordered that the Senate vacancies created by their ineligibility would be resolved by a special count of the ballots, meaning that, in each case, votes cast ‘above the line’ in favour of each candidate’s party will be counted in favour of the next candidate on that party’s list (at [137]–[138]). In the matter of Joyce, it was common ground between the parties that a by-election must be held to elect the member of New England.

Re Nash Summons

On 6 November 2017, the special count for the vacancy left by Nash was held, and Ms Hollie Hughes was identified as the candidate to fill the vacancy. After the Attorney-General sought an order from the High Court appointing Hughes to Nash’s place, Hughes herself filed an affidavit containing evidence that questioner whether Hughes herself was also disqualified under s 44. The High Court heard that evidence, held that Hughes was indeed disqualified, and made orders dismissing the Attorney-General’s summons on 15 November. The Court (Kiefel CJ, Bell, Gageler, Keane and Edelman JJ) published its unanimous reasons on 6 December 2017.

Section 44(iv) provides that any person who ‘holds any office of profit under the Crown’ is incapable of being chosen as a Senator. Hughes was appointed to the position of part-time member of the Administrative Appeals Tribunal for a seven year term starting on 1 July 2017. She resigned from that appointment on 27 October 2017, by email to the Governor-General sent 45 minutes after the Court held that Nash was ineligible to be chosen as a Senator (at [8]). The Court noted that there was no dispute that, from 1 July to 27 October 2017, Hughes held an ‘office of profit under the Crown’ (at [9]).

Turning to the question of timing, the Court noted that a number of significant dates: the writ for the election was issued on 16 May 2016, nominations closed on 3 June, the candidates were declared on 10 June, polling took place on 2 July, and on 4 August the Australian Electoral Officer announced the result (at [14]). The Court then noted its jurisdictional ‘matter’ requirements, emphasising that its statutory power to declare a candidate as elected must, because of the eligibility evidence raised, also resolve that question (at [16]–[19]). Moving to the parties’ substantive arguments on timing, the Court rejected the Attorney-General and Hughes’s contention that Sykes v Cleary [1992] HCA 60 could be read as holding that the polling date is the end-point of the process of ‘being chosen’: rather, the Court’s reasoning in that case was that a person is ‘chosen’ only when he or she is declared to be elected, emphasising that being chosen was a process, that nomination was an essential part of that process, and leaving open the question of where the temporal ‘end-point’ of that process lies (at [22]–[28]).

To determine that question, the Court turned to the text and structure of the Constitution, reiterating the text of s 44 in full and s 45, which s 44 must be read in context with, which provides that where a senator becomes subject to any of the disabilities in s 44 his or her place shall become vacant (at [29]–[30]). The Court that if the end-point of the process of being chosen were the ‘act of choice’, there might be the potential for a ‘hiatus’ if a person became subject to a s 44 disability ‘after polling but before being returned … would not have been prevented [by s 44] from being chose but would be prevented … from sitting’ (at [31]). That possibility can be solved by s 45’s operation of vacating the person chosen: ‘there is no gap between the operation of s 44 and the operation of s 45(i)’ (at [32]). The Court stated, at [33]:

Whatever the end-point of the process of being chosen to which s 44 refers, a person has become a senator or member of the House of Representatives within the meaning of s 45 once that end-point is reached. If the person thereafter becomes subject to a disability mentioned in s 44, not only does s 44 operate to prevent the person from sitting but s 45(i) operates to vacate his or her place. Section 45(i) has that operation even if the person has not yet taken his or her seat for the place for which he or she was chosen and, by reason of becoming subject to the disability, is prevented by s 44 from ever doing so.

Noting that the Constitution‘s sections on electoral choice (ss 7, 24 and 44) are put into operation by the Electoral Act 1918 (Cth), the Court emphasised that it is this Act that establishes the structure by which that ‘choice’ is ‘facilitate[d] and translate[d]’, and ultimately made (at [35]–[36]). That structure shows that choosing does not end with polling: crucially, it includes extensive provisions on scrutiny of votes (at [36]), and (at [38]) those processes

continue until a candidate is determined in accordance with those processes to have been chosen. They are brought to an end only with the declaration of the result of the election and of the names of the candidates elected, after which certification of those names and return of the writ is a formality.

After noting how this principle played out in earlier cases (see at [39]ff), the Court concluded that the process of choice had not been completed in respect of Nash’s place:

Ms Hughes was disqualified by operation of s 44(iv) of the Constitution from being elected as a senator for the State of New South Wales for the place for which Ms Nash was returned because Ms Hughes held an office of profit under the Crown during a period in which the disqualification of Ms Nash from being validly returned as elected meant that the process of choice prescribed by the Parliament for the purpose of s 7 of the Constitution remained incomplete.

The Court concluded that, if the result seems ‘harsh or unduly technical’, it must be understood in context: the question of Hughes’ ineligibility only arose because a vacancy was found some 13 months after Nash was returned, and while it is understandable that she take up an appointment to the AAT, it was a voluntary step she took in circumstances where the declaration of a vacancy was always a possibility, and taking that step forfeited her opportunity to benefit from such a vacancy in the future (at [45]).

Re Nash, Further Decision	[2017] HCA 52	6 December 2017
High Court Judgment	[2017] HCA 45	27 October 2017
Result	Canavana and Xenophon eligible; Ludlam, Waters, Roberts, Joyce and Nash ineligible; special count of ballots to be held for the Senate vacancies; a by-election in New England to be held.
Roberts Judgment, Keane J	[2017] HCA 39	22 September 2017
High Court Documents	Re Canavan
	Re Joyce
	Re Ludlam
	Re Nash
	Re Roberts
	Re Waters
	Re Xenophon
Roberts Hearing, Keane J	[2017] HCATrans 192	21 September 2017
Hearings, Kiefel CJ	[2017] HCATrans 182	15 September 2017
	[2017] HCATrans 171	24 August 2017
Determination, Kiefel CJ	[2017] HCATrans 170	24 August 2017

ORDER

Matter No C11/2017

The questions referred to the Court of Disputed Returns by the President of the Senate in his letter dated 9 August 2017 be answered as follows:

Question (a)

Whether, by reason of s 44(i) of the Constitution, there is a vacancy in the representation of Queensland in the Senate for the place for which Senator [the Hon] Matthew Canavan was returned?

Answer

There is no vacancy by reason of s 44(i) of the Constitution in the representation of Queensland in the Senate for the place for which Senator the Hon Matthew Canavan was returned.

Question (b)

If the answer to Question (a) is “yes”, by what means and in what manner that vacancy should be filled?

Answer

Does not arise.

Question (c)

What directions and other orders, if any, should the Court make in order to hear and finally dispose of this reference?

Answer

No further order is required.

Question (d)

What, if any, orders should be made as to the costs of these proceedings?

Answer

No further order is required.

Matter No C12/2017

The questions referred to the Court of Disputed Returns by the President of the Senate in his letter dated 9 August 2017 be answered as follows:

Question (a)

Whether by reason of s 44(i) of the Constitution there is a vacancy in the representation of Western Australia in the Senate for the place for which Senator Ludlam was returned?

Answer

There is a vacancy by reason of s 44(i) of the Constitution in the representation of Western Australia in the Senate for the place for which Mr Scott Ludlam was returned.

Question (b)

If the answer to Question (a) is “yes”, by what means and in what manner that vacancy should be filled?

Answer

The vacancy should be filled by a special count of the ballot papers. Any directions necessary to give effect to the conduct of the special count should be made by a single Justice.

Question (c)

If the answer to Question (a) is “no”, is there a casual vacancy in the representation of Western Australia in the Senate within the meaning of s 15 of the Constitution?

Answer

Does not arise.

Question (d)

What directions and other orders, if any, should the Court make in order to hear and finally dispose of this reference?

Answer

Unnecessary to answer.

Matter No C13/2017

The questions referred to the Court of Disputed Returns by the President of the Senate in his letter dated 9 August 2017 be answered as follows:

Question (a)

Whether by reason of s 44(i)[] of the Constitution there is a vacancy in the representation of Queensland in the Senate for the place for which Senator Waters was returned?

Answer

There is a vacancy by reason of s 44(i) of the Constitution in the representation of Queensland in the Senate for the place for which Ms Larissa Waters was returned.

Question (b)

If the answer to Question (a) is “yes”, by what means and in what manner that vacancy should be filled?

Answer

The vacancy should be filled by a special count of the ballot papers. Any directions necessary to give effect to the conduct of the special count should be made by a single Justice.

Question (c)

If the answer to Question (a) is “no”, is there a casual vacancy in the representation of Queensland in the Senate within the meaning of s 15 of the Constitution?

Answer

Does not arise.

Question (d)

What directions and other orders, if any, should the Court make in order to hear and finally dispose of this reference?

Answer

Unnecessary to answer.

Matter No C14/2017

The questions referred to the Court of Disputed Returns by the President of the Senate in his letter dated 10 August 2017 be answered as follows:

Question (a)

Whether by reason of s 44(i) of the Constitution there is a vacancy in the representation of Queensland in the Senate for the place for which Senator Roberts was returned?

Answer

There is a vacancy by reason of s 44(i) of the Constitution in the representation of Queensland in the Senate for the place for which Senator Malcolm Roberts was returned.

Question (b)

If the answer to question (a) is “yes”, by what means and in what manner that vacancy should be filled?

Answer

The vacancy should be filled by a special count of the ballot papers. Any directions necessary to give effect to the conduct of the special count should be made by a single Justice.

Question (c)

What directions and other orders, if any, should the Court make in order to hear and finally dispose of this reference?

Answer

Unnecessary to answer.

Question (d)

What, if any, orders should be made as to the costs of these proceedings?

Answer

Unnecessary to answer.

Matter No C15/2017

The questions referred to the Court of Disputed Returns by the Speaker of the House of Representatives in his letter dated 15 August 2017 be answered as follows:

Question (a)

Whether, by reason of s 44(i) of the Constitution[,] the place of the Member for New England (Mr Joyce) has become vacant?

Answer

By reason of s 44(i) of the Constitution, the place of the Member for New England, the Hon Barnaby Joyce MP, is vacant.

Question (b)

If the answer to Question (a) is “yes”, by what means and in what manner that vacancy should be filled?

Answer

There should be a by-election for the election of the Member for New England.

Question (c)

What directions and other orders, if any, should the Court make in order to hear and finally dispose of this reference?

Answer

Unnecessary to answer.

Question (d)

What, if any, orders should be made as to the costs of these proceedings?

Answer

Unnecessary to answer.

Matter No C17/2017

The questions referred to the Court of Disputed Returns by the President of the Senate in his letter dated 5 September 2017 be answered as follows:

Question (a)

Whether, by reason of s 44(i) of the Constitution, there is a vacancy in the representation of New South Wales in the Senate for the place for which Senator [the Hon] Fiona Nash was returned?

Answer

There is a vacancy by reason of s 44(i) of the Constitution in the representation of New South Wales in the Senate for the place for which Senator the Hon Fiona Nash was returned.

Question (b)

If the answer to question (a) is “yes”, by what means and in what manner that vacancy should be filled?

Answer

The vacancy should be filled by a special count of the ballot papers. Any directions necessary to give effect to the conduct of the special count should be made by a single Justice.

Question (c)

What directions and other orders, if any, should the Court make in order to hear and finally dispose of this reference?

Answer

Unnecessary to answer.

Question (d)

What, if any, orders should be made as to the costs of these proceedings?

Answer

Unnecessary to answer.

Matter No C18/2017

The questions referred to the Court of Disputed Returns by the President of the Senate in his letter dated 5 September 2017 be answered as follows:

Question (a)

Whether by reason of s 44(i) of the Constitution there is a vacancy in the representation of South Australia in the Senate for the place for which Senator Xenophon was returned?

Answer

There is no vacancy by reason of s 44(i) of the Constitution in the representation of South Australia in the Senate for the place for which Senator Nick Xenophon was returned.

Question (b)

If the answer to question (a) is “yes”, by what means and in what manner that vacancy should be filled?

Answer

Does not arise.

Question (c)

What directions and other orders, if any, should the Court make in order to hear and finally dispose of this reference?

Answer

No further order is required.

Question (d)

What, if any, orders should be made as to the costs of these proceedings?

Answer

No further order is required