Re Canavan; and other references

• Jurisdiction: Australia Federal only
• Court: High Court
• Judge: Kiefel CJ,Bell,Gageler,Keane,Nettle,Gordon,Edelman JJ.
• Judgment Date: 27 October 2017
• Neutral Citation: [2017] HCA 45
• Docket Number: C11/2017, C12/2017, C13/2017, C14/2017, C15/2017, C17/2017 and C18/2017
• Date: 27 October 2017

[2017] HCA 45

HIGH COURT OF AUSTRALIA

Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon AND Edelman JJ

C11/2017, C12/2017, C13/2017, C14/2017, C15/2017, C17/2017 and C18/2017

In the Matter of Questions Referred to the Court of Disputed Returns Pursuant to Section 376 of the Commonwealth Electoral Act 1918 (Cth) Concerning Senator the Hon Matthew Canavan

In the Matter of Questions Referred to the Court of Disputed Returns Pursuant to Section 376 of the Commonwealth Electoral Act 1918 (Cth) Concerning Mr Scott Ludlam

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

In the Matter of Questions Referred to the Court of Disputed Returns Pursuant to Section 376 of the Commonwealth Electoral Act 1918 (Cth) Concerning Senator Malcolm Roberts

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 Barnaby Joyce MP

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

In the Matter of Questions Referred to the Court of Disputed Returns Pursuant to Section 376 of the Commonwealth Electoral Act 1918 (Cth) Concerning Senator Nick Xenophon

Representation

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

D M J Bennett QC with A L Tokley SC, G J D del Villar and A K Flecknoe-Brown appearing on behalf of Senator Canavan (instructed by Stokes Moore)

B E Walters QC with E A Bennett and A N P McBeth appearing on behalf of Mr Ludlam and Ms Waters (instructed by FitzGerald and Browne)

C R C Newlinds SC with P Kulevski and R J Scheelings appearing on behalf of Senator Roberts (instructed by Holman Webb Lawyers)

B W Walker SC with G E S Ng appearing on behalf of Mr Joyce MP and Senator Nash (instructed by Everingham Solomons Solicitors and MinterEllison)

A L Tokley SC with H M Heuzenroeder and S A McDonald appearing on behalf of Senator Xenophon (instructed by Nick Xenophon & Co Lawyers)

R Merkel QC and J T Gleeson SC with E M Nekvapil and S Zeleznikow appearing on behalf of Mr Windsor in the reference concerning Mr Joyce MP (instructed by Quinn Emanuel Urquhart & Sullivan)

G R Kennett SC with B K Lim appearing as amicus curiae in the references concerning Senators Canavan, Nash and Xenophon (instructed by Australian Government Solicitor)

Constitution, ss 16, 34, 44(i), 45(i).

Commonwealth Electoral Act 1918 (Cth), ss 163, 376.

Constitutional law (Cth) — Parliamentary elections — References to Court of Disputed Returns — Where referred persons elected to Commonwealth Parliament — Where evidence to suggest each held dual citizenship at date of nomination for election — Whether each person incapable of being chosen or of sitting as senator or member of House of Representatives by reason of s 44(i) of Constitution — Proper construction of s 44(i) of Constitution — Whether s 44(i) contains implied mental element in relation to acquisition or retention of foreign citizenship — Whether each person subject or citizen of foreign power or entitled to rights or privileges of subject or citizen of foreign power for purposes of s 44(i).

Words and phrases — “a subject or a citizen … of a foreign power”, “constitutional imperative”, “foreign citizenship”, “incapable of being chosen”, “knowledge”, “natural-born”, “naturalised”, “reasonable steps”, “voluntariness”, “voluntary act”, “wilful blindness”.

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...