Questions Referred to the Court of Disputed Returns Pursuant to Section 376 of the Commonwealth Electoral Act 1918 (Cth) Concerning the Hon Ms Fiona Nash

• Jurisdiction: Australia Federal only
• Judge: Kiefel CJ,Bell,Gageler,Keane,Edelman JJ
• Judgment Date: 06 December 2017
• Neutral Citation: [2017] HCA 52
• Date: 06 December 2017
• Docket Number: C17/2017
• Court: High Court

[2017] HCA 52

HIGH COURT OF AUSTRALIA

Kiefel CJ, Bell, Gageler, Keane AND Edelman JJ

C17/2017

In the Matter of Questions Referred to the Court of Disputed Returns Pursuant to Section 376 of the Commonwealth Electoral Act 1918 (Cth) Concerning the Hon Ms Fiona Nash

Representation

S P Donaghue QC, Solicitor-General of the Commonwealth with M P Costello and J D Watson appearing on behalf of the Attorney-General of the Commonwealth (instructed by Australian Government Solicitor)

A R Moses SC with S J P Duggan and P G Sharp appearing on behalf of Ms Hughes (instructed by Harpur Phillips)

G R Kennett SC with B K Lim appearing as amicus curiae (instructed by Australian Government Solicitor)

No appearance for the Hon Ms Nash

Administrative Appeals Tribunal Act 1975 (Cth), s 15(1).

Commonwealth Electoral Act 1918 (Cth), ss 102(4), 152, 152(1)(a), 152(1)(b), 152(1)(c), 152(1)(d), 155, 156(1), 157, 159, 167(1), 170(2)(a)(i), 175(1), 175(2), 176(1), 177(1), 220, 283(1), 360, 360(1)(vi), 374(ii), 376, 378, 379.

Remuneration Tribunal Act 1973 (Cth), s 7.

Constitutional law (Cth) — Parliamentary elections — Reference to Court of Disputed Returns — Where Court held there was a vacancy in representation of New South Wales in Senate — Where Court made directions for special count of ballot papers to fill vacancy — Where orders sought following special count that Ms Hollie Hughes be declared elected as senator to fill vacancy — Where Ms Hughes nominated for election to Senate at 2016 general election — Where Ms Hughes not declared elected following polling for 2016 general election — Where Ms Hughes appointed to Administrative Appeals Tribunal one year after 2016 general election — Where Ms Hughes resigned from that position upon Court holding there was a vacancy in representation of New South Wales in Senate — Where that position was “office of profit under the Crown” within meaning of s 44(iv) of Constitution — Whether holding position for that period rendered Ms Hughes “incapable of being chosen” as a senator under s 44(iv) of Constitution.

Constitutional law (Cth) — Parliamentary elections — Reference to Court of Disputed Returns — Jurisdiction of Court to determine whether a person sought to be declared elected to fill a vacancy is disqualified under s 44 of Constitution.

Words and phrases — “electoral choice”, “electoral process”, “hiatus”, “incapable of being chosen”, “nomination”, “office of profit under the Crown”, “polling”, “process of being chosen”, “scrutiny”, “special count”, “vacancy”.

Constitution, ss 7, 10, 12, 13, 15, 24, 30, 31, 41, 44, 44(i), 44(iv), 45, 45(i), 51(xxxvi).

1 Kiefel CJ, Bell, Gageler, Keane AND Edelman JJ. On 27 October 2017, the Full Court of this Court sitting as the Court of Disputed Returns answered questions referred to it pursuant to resolutions of the Senate and the House of Representatives under s 376 of the Commonwealth Electoral Act 1918 (Cth) (“the Act”)1. One of the references from the Senate concerned the Hon Ms Fiona Nash. The answers given to the questions referred in that reference included answers to the effect that, by reason of s 44(i) of the Constitution, there was a vacancy in the representation of New South Wales in the Senate for the place for which Ms Nash was returned and that the vacancy should be filled by a special count of the ballot papers with any directions necessary to give effect to the conduct of that special count being made by a single Justice.

2 On 2 November 2017, Gageler J made directions necessary to facilitate the conduct of such a special count. A special count was conducted in accordance with those directions on 6 November 2017. The candidate ascertained by that special count to be entitled to be elected to the place left unfilled by the ineligibility of Ms Nash was Ms Hollie Hughes.

3 By summons dated 7 November 2017, the Attorney-General of the Commonwealth sought from the Court an order that Ms Hughes be declared duly elected as a senator for the State of New South Wales for the place for which Ms Nash was returned. The summons was served on Ms Hughes and on Mr Kennett SC, who retained his appointment as amicus curiae.

4 In anticipation of the return of that summons, an affidavit was filed on behalf of Ms Hughes. The affidavit contained evidence which raised an issue as to whether Ms Hughes was herself disqualified from being elected as a senator by reason of having been rendered “incapable of being chosen” by operation of s 44(iv) of the Constitution.

5 That issue having been so raised, Gageler J on 10 November 2017 allowed Ms Hughes to be heard on the summons with the consequence that Ms Hughes was deemed to be a party to the reference by operation of s 378 of the Act. His Honour went on to state the question of whether the order sought in the summons should be made for the consideration of the Full Court pursuant to s 18 of the Judiciary Act 1903 (Cth).

6 The hearing of the question stated occurred before the Full Court as presently constituted on 15 November 2017. The Full Court at the conclusion of the hearing answered the question stated in the negative, dismissed the summons and ordered that Ms Hughes' costs be paid by the Commonwealth.

7 These are the reasons for the dismissal of the summons.

Ms Hughes' office of profit

8 The affidavit filed on behalf of Ms Hughes was supplemented at the hearing of the question stated for the consideration of the Full Court by a statement of agreed facts. The affidavit and statement of agreed facts revealed that on 15 June 2017 Ms Hughes was appointed to the position of a part-time member of the Administrative Appeals Tribunal for a period of seven years commencing on 1 July 2017. The affidavit and statement of agreed facts further revealed that Ms Hughes resigned from that position pursuant to s 15(1) of the Administrative Appeals Tribunal Act 1975 (Cth) with effect from 27 October 2017. She did so by letter of resignation which she transmitted to the Governor-General by email some 45 minutes after the Full Court on that day gave its answers to the effect that there was a vacancy in the representation of New South Wales in the Senate which should be filled by a special count.

9 Members, including part-time members, of the Administrative Appeals Tribunal are entitled to remuneration in accordance with determinations made under s 7 of the Remuneration Tribunal Act 1973 (Cth). There could be, and was, no dispute that the position Ms Hughes held during the period between 1 July and 27 October 2017 answered the description of an “office of profit under the Crown” within the meaning of s 44(iv) of the Constitution.

The issue of timing

10 The issue which divided the Attorney-General and Ms Hughes on the one hand from Mr Kennett on the other on the hearing of the question stated for the consideration of the Full Court was one of timing. The issue was whether holding that disqualifying office during the discrete period between 1 July and 27 October 2017 was enough to render Ms Hughes “incapable of being chosen” as a senator in the election at which Ms Nash had been returned.

11 The election to the Senate for the State of New South Wales at which Ms Nash and Ms Hughes both stood as candidates followed the simultaneous dissolution of the Senate and the House of Representatives by the Governor-General on 9 May 2016.

12 Pursuant to s 12 of the Constitution, the Governor of New South Wales caused the writ for the election to be issued on 16 May 2016. As required by the Act2, the writ for the election fixed four dates. The first was the date for the close of the roll of electors for the State3, which was required to be the date seven days after the date of the writ4, following which a person was not to be added to the roll until after the close of the poll for the election5. The date fixed by the writ for the close of the roll was accordingly 23 May 2016. The second was the date for the nomination6, which was required to be a date between 10 and 27 days from the date of the writ7, by noon on which nominations of candidates for election were to be made in nomination papers submitted to the Australian Electoral Officer for the State8 and any nominations earlier submitted would be able to be withdrawn9, and at noon on the day following which the Australian Electoral Officer was to declare each candidate whose nomination had not been rejected10. The date fixed by the writ for the nomination was 9 June 2016. The third date fixed by the writ was the date for the polling11, which was required to be a date between 23 and 31 days after the date of the nomination12, on which polling places were to be open to electors desiring to vote13. The date so fixed for the polling was 2 July 2016.

13 The last of the dates fixed by the writ issued by the Governor on 16 May 2016 was the date for the return of the writ14 following the scrutiny to ascertain the result of the polling for which Pt XVIII of the Act provides, which date was required to be not more than 100 days after the date of the issue of the writ15. Fixing the date for the return of the writ had the effect of setting an outer limit for compliance with the requirement that the Australian Electoral Officer, “as soon as conveniently may be after the result of the election has been ascertained”16, “declare the result of the election and the names of the candidates elected”17, certify the names of the candidates elected in a certificate attached to the writ18 and then return the writ to the Governor19. The date so fixed for the return of the writ was 8 August 2016.

14 Following the issue of the writ, Ms Hughes was nominated for election in a nomination paper received by the Australian Electoral Officer for the State of New South Wales on 3 June 2016. The Australian Electoral Officer declared her nomination, together with that of each other candidate for the election, on 10 June 2016. Following polling,...