Introduction
The High Court of Australia sitting as the Court of Disputed Returns in Re Nash [No 2] [2017] HCA 52 has found that the candidate who was proposed to fill the vacancy in the Senate following the disqualification of Senator Nash by reason of the foreign allegiance or citizenship provisions of s 44(i) of the Commonwealth Constitution was herself disqualified from being elected as a senator by reason of s 44(iv) of the Constitution because she had held an office of profit under the Crown during a period when the Senate election at which Senator Nash had been returned remained incomplete.
Relevant provisions
Section 44 of the Constitution relevantly provides that any person who:
“(iv) holds any office of profit under the Crown, or any pension payable during the pleasure of the Crown out of any of the revenues of the Commonwealth; …
…
shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.”
Under s 45 of the Constitution, the place of a senator or member of the House of Representatives who becomes subject to any of the disabilities referred to in s 44, will become vacant.
Background
Ms Nash and Ms Hollie Hughes had both been candidates for election to the Senate for the State of New South Wales in the general election for the Commonwealth Parliament held on 2 July 2016. Following the polling, Ms Nash was declared elected to the Senate in August 2016 and took her place in the Senate. Some 11 months later, on 1 July 2017, Ms Hughes began working as a part-time member of the Administrative Appeals Tribunal (“AAT”).
In September 2017, the Senate referred a number of questions to the High Court of Australia sitting as the Court of Disputed Returns. These questions included:
- whether, 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 Senator Nash had been returned; and
- if the answer was “yes”, by what means and in what manner that vacancy should be filled.
On 27 October 2017, a Full Court of all 7 justices sitting as the Court of Disputed Returns in Re Canavan; Re Ludlam; Re Waters; Re Roberts [No 2]; Re Joyce; Re Nash; Re Xenophon [2017] HCA 45; (2017) 91 ALJR 1209 (“Re Canavan”) found that, at the date of her nomination as a senator for New South Wales, Senator Nash had been a British citizen and was incapable of being chosen or sitting as a senator by reason of s 44(i) of the Constitution. Accordingly, the Court’s answers to the questions referred to it were that there was a vacancy by reason of s 44(i) in the representation of New South Wales in the Senate for the place for which Senator Nash had been returned and that that vacancy should be filled by a special count of the ballot papers, with any directions necessary to give effect to the conduct of the special count to be made by a single Justice. (For a summary of Re Canavan, see K Ottesen, “Commonwealth parliamentarians disqualified by reason of s 44(i) of the Constitution”, 13 November 2017).
Some 45 minutes after the decision in Re Canavan was handed down, Ms Hughes, in anticipation of being elected to the Senate to fill Ms Nash’s place, resigned from her position as a part-time member of the AAT.
A special count of the ballot papers was conducted and the candidate ascertained to be entitled to be elected was Ms Hughes. However, after the Attorney-General of the Commonwealth sought an order from the Court that Ms Hughes be declared duly elected as a senator for New South Wales for the place for which Ms Nash had been returned, an issue arose as to whether Ms Hughes herself was disqualified from being elected as a senator by reason of the operation of s 44(iv) of the Constitution.
Court’s decision
The issue was dealt with by a Full Court constituted by five justices (Kiefel CJ, Bell, Gageler, Keane and Edelman JJ).
The Court said that there could be, and was, no dispute that the position which Ms Hughes had held during the period between 1 July and 27 October 2017 as a part-time member of the AAT was an “office of profit under the Crown” within the meaning of s 44(iv). What was in dispute was whether the holding of that position during that period had rendered Ms Hughes “incapable of being chosen” as a senator in the election at which Ms Nash had been returned (at [9]-[10]).
It had been said in Re Canavan, referring to Sykes v Cleary [1992] HCA 60; (1992) 176 CLR 77, that it was settled by authority that the words “shall be incapable of being chosen” in s 44 referred to the process of being chosen. The Attorney-General, supported by Ms Hughes, argued that Sykes v Cleary was to be understood as having held that ‘the process of being chosen’ ended at the end of polling day (at [20]-[21]).
The Court, however, said that Sykes v Cleary could not be read in this way and that no question had been raised in Sykes v Cleary as to when ’the process of being chosen’ ended (at [21]-[24]). The Court went on to say that the question of the temporal end-point of ‘the process of being chosen’, during which a disqualification under s 44 took effect, was one which had been left unanswered by binding authority and so fell to be resolved at the level of principle by reference to the text and structure of the Constitution, taking into account the course of its interpretation (at [28]).
In resolving the issue of the end-point of ‘the process of being chosen’, the Court then, in summary, reasoned as follows (see [35]-[43]):
- The Constitution provided for the Commonwealth Parliament to prescribe the processes of choice by electors to which ss 7 and 24 of the Constitution alluded, those sections mandating respectively that the Senate shall be composed of senators for each State, directly chosen by the people of the State, and that the House of Representatives shall be composed of members directly chosen by the people of the Commonwealth.
- Importantly, it was the Commonwealth Electoral Act 1918 (Cth) (“CEA”) which established the structure by which the choice by the people was to be made.
- Under the CEA, the processes which facilitated and translated electoral choice in order to determine who was or was not chosen by the people as a senator or member of the House of Representatives did not end with polling but included the scrutiny for which Pt XVIII of the CEA elaborately provided. (Pt XVIII of the CEA provides that the result of the polling shall be ascertained by scrutiny and sets out the manner in which the scrutiny is to be conducted and the manner in which any re-count of ballot papers is to be carried out).
- The processes of choice which the Commonwealth Parliament had prescribed in the CEA for the purposes of ss 7 and 24 of the Constitution continued until a candidate was determined in accordance with those processes to have been chosen. They were 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 was a formality.
- The processes under the CEA which facilitated and translated electoral choice remained constitutionally incomplete until such time as they resulted in the determination as elected of a person who was qualified to be chosen and not disqualified from being chosen as a senator or member of the House of Representatives. This was accepted in In re Wood [1988] HCA 22 at [18]; (1988) 167 CLR 145 at 164 where it was stated that “[a] Senate election is not completed when an unqualified candidate is returned as elected”. There was nothing novel about this aspect of the decision in In re Wood as it was simply an application of the principle stated in Vardon v O’Loghlin [1907] HCA 69; (1907) 5 CLR 201.
- Acceptance of the principle in Vardon v O’Loghlin, as applied in In re Wood, underlay the answer given in Re Canavan that the vacancy in the representation of New South Wales in the Senate for the place for which Ms Nash was returned should be filled by a special count of the ballot papers. That is, understanding that the process of choice under s 7 of the Constitution had not been completed in respect of the place in the Senate for which Ms Nash was returned underpinned the very procedure on which the Attorney-General relied in seeking the order that Ms Hughes be declared duly elected.
The Court then concluded (at [44]) that Ms Hughes was disqualified by operation of s 44(iv) from being elected as a senator for New South Wales for the place for which Ms Nash was returned because Ms Hughes had 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 had remained incomplete.
The Court went on to say (at [45]):
“Lest it might seem harsh or unduly technical, this result needs to be understood in context. The issue of whether Ms Hughes was ineligible to be chosen arose only as an incident of the ultimate determination of questions concerning the existence of a vacancy in the representation of New South Wales in the Senate for the place for which Ms Nash was returned which the Senate resolved to refer to the Court of Disputed Returns some 13 months after Ms Nash was in fact returned. Ms Hughes’ acceptance in the meantime of appointment to the Administrative Appeals Tribunal, with the entitlement to remuneration which that appointment brought, was understandable. But it was a voluntary step which she took in circumstances where reference by the Senate to the Court of Disputed Returns of a question concerning whether a vacancy existed in the representation of New South Wales in the Senate by reason of the disqualification or lack of qualification of a senator who had been returned as elected was always a possibility. By choosing to accept the appointment for the future, Ms Hughes forfeited the opportunity to benefit in the future from any special count of the ballot papers that might be directed as a result of such a vacancy being found.”
