Disqualified senator not eligible to be included in a special count

Introduction

The High Court of Australia sitting as the Court of Disputed Returns in Re Kakoschke-Moore [2018] HCA 10 has held that a senator who was disqualified by reason of the foreign citizenship provisions of s 44(i) of the Commonwealth Constitution but who had since renounced her foreign citizenship was not eligible to be included in a special count to fill the vacancy for her place in the Senate.

Background

The person in question (“SKM”) had nominated as a candidate to be elected as a senator for South Australia at the general election on 2 July 2016 following the dissolution of both houses of the Commonwealth Parliament on 9 May 2016. However, at the time of nomination, SKM was in fact a British citizen. On 4 August 2016, SKM was returned as elected as a senator for South Australia. After receiving confirmation from the United Kingdom Home Office and legal advice that she was a British citizen, SKM resigned as a senator in November 2017. The Senate then resolved to refer to the High Court, sitting as the Court of Disputed Returns, questions which included whether, by reason of s 44(i) of the Constitution (which renders a citizen of a foreign power incapable of being chosen or of sitting as a senator), there was a vacancy in the representation of South Australia in the Senate for the place for which SKM had been returned and, if so, how any such vacancy should be filled. SKM, having taken action to renounce her British citizenship, received confirmation that her renunciation was effective on 6 December 2017.

A single justice of the Court declared SKM to be incapable of being chosen or of sitting as a senator by reason of s 44(i) of the Constitution and reserved for the consideration of the Full Court questions which included the following:

• Should the vacancy in the Senate for SKM’s place be filled by a special count of the votes cast at the poll on 2 July 2016 or by some other method?
• Did the fact that SKM had renounced her British citizenship with effect from 6 December 2017 render her capable of now being chosen to fill the vacancy by means of a special count of the votes cast on 2 July 2016?

Full Court’s decision

The Full Court (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ) unanimously decided that the referred questions should be answered as follows:

• The vacancy should be filled by a special count of the votes cast at the poll on 2 July 2016.
• The fact that SKM had renounced her British citizenship with effect from 6 December 2017 did not render her capable of now being chosen to fill that vacancy.

SKM had submitted as follows:

• The vacancy should be filled, not by a special count, but by the Full Court declaring her to be elected pursuant to s 360(1)(vi) of the Commonwealth Electoral Act 1918 (Cth) (“CEA“) which enabled the Court of Disputed Returns to “declare any candidate duly elected who was not returned as elected”. Disqualification by reason of s 44(i) was not permanent and the effect of s 44(i) was spent once the disability had been overcome by the renunciation of her British citizenship.
• Alternatively, if a special count was to be ordered, then, as she was no longer disqualified from being chosen as a senator, she should not be excluded from the special count. It was immaterial that she had been incapable of being chosen at some earlier point in time, and this approach would best give effect to the true intention of the voters.

The Full Court, however, said that both submissions were misconceived and involved a fundamental misunderstanding:

• As to the first submission, while SKM was now eligible to stand for election in the future, the removal of her disqualification did not operate retrospectively to deem her to have been eligible to be chosen as a senator at the election held on 2 July 2016 (at [16]).
• As to the alternative submission, a special count was not a poll of the voters separate from the poll of 2 July 2016 but was only a means of determining the legal effect of that poll i.e. the “true legal intent of the voters” (which it was the purpose of a special count to identify) was the true legal intent expressed at the poll held on 2 July 2016 and it was SKM’s ineligibility as a candidate in that poll which denied legal effect to the votes cast for her (at [21]).

The Full Court went on to explain that Re Nash (No 2) [2017] HCA 52; (2017) 92 ALJR 23; (2017) 350 ALR 204 had held that the process of choice mandated by the Constitution and prescribed by the CEA began at the date of nomination and ended, not with polling, but at a time when only candidates capable of being chosen were returned as elected (at [28]; [35]). [For a summary of Re Nash [No 2], see K Ottesen, “Candidate for disqualified senator’s place is herself disqualified from being elected as a senator”, 23 December 2017].

Thus, the Full Court said that the process of choice involved in the election of 2 July 2016 remained incomplete until the vacancy in the Senate for South Australia which occurred on the Senate’s dissolution on 9 May 2016 was filled by the determination that a person who was eligible to be chosen had been elected. As SKM had been a citizen of a foreign power from the beginning of and during most of this process, she could not now be included in the special count for the purpose of completing the electoral process, of which nomination was an essential part. She had not been eligible to be chosen as a senator at that time and her candidacy thereafter had been legally ineffective (at [29]).

The Full Court also made the following points (at [30]-[35]):

• A special count was part of the electoral process and was not a separate, new electoral process by which a new choice was to be made. On the reference by the Senate, the Court’s task was to ascertain the legally effective choice of the people, given that SKM’s candidacy was without legal effect.
• A special count could be contrasted with the holding of a by-election, the latter involving the casting of new votes following a new nomination as part of a new electoral process. A person who had previously been disqualified by reason of s 44 would be able to participate in a by-election provided that the disqualifying attribute had been removed by the time the new process of being chosen had commenced.
• The case before the Full Court was not distinguishable from Re Nash (No 2) and there was no basis for overruling Re Nash (No 2).