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).

Introduction

The High Court of Australia sitting as the Court of Disputed Returns in Re Lambie [2018] HCA 6 has found that the offices of mayor and councillor of a local government corporation under the Local Government Act 1993 (Tas) (“LGA”) do not constitute offices of profit “under” the Crown within s 44(iv) of the Commonwealth Constitution and, accordingly, a person who held these offices was not incapable of being chosen or of sitting as a senator by reason of that provision.

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.

But subsection (iv) does not apply to the office of any of the Queen’s Ministers of State for the Commonwealth, or of any of the Queen’s Ministers for a State, or to the receipt of pay, half pay, or a pension, by any person as an officer or member of the Queen’s navy or army, or to the receipt of pay as an officer or member of the naval or military forces of the Commonwealth by any person whose services are not wholly employed by the Commonwealth.”

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

The Senate had referred certain questions to the High Court sitting as the Court of Disputed Returns. The questions had included whether, by reason of s 44(i) of the Constitution (foreign citizenship), there was a vacancy in the representation of Tasmania in the Senate for the place for which Ms J Lambie had been returned at the general election for the Commonwealth Parliament held in July 2016 and, if so, by what means and in what manner the vacancy should be filled. A single justice of the Court had answered the questions to the effect that there was a vacancy and that it should be filled by a special count of the ballot papers. Following the special count, a candidate identified to fill the vacancy was a person who, for current terms which had commenced in 2014, held the offices of mayor and of councillor of Devonport City Council, a local government corporation established under the LGA. In respect of each of the offices, the candidate had a statutory entitlement to be paid a substantial annual allowance by the Council. The single justice then stated for the consideration of the Full Court the question of whether the candidate was incapable of being chosen or of sitting as a senator by reason of s 44(iv) of the Constitution.

Full Court’s decision

The Full Court (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ) unanimously answered the question in the negative.

A joint judgment of Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ (“Joint Judgment”) said that there was no dispute that:

• “the Crown” in s 44(iv) referred to executive government and encompassed both the executive government of a State and the executive government of the Commonwealth; and
• an “office of profit” in s 44(iv) captured the offices of mayor and of councillor of a local government corporation established under the LGA as each of these was a position of a public character constituted under governmental authority to which duties and emoluments were attached (at [9]).

The sole issue in dispute, the Joint Judgment said, was whether the holding of the relevant offices were offices of profit “under” the Crown, being in this case, the executive government of Tasmania (at [10]).

After considering the language, history and purpose of s 44(iv), the Joint Judgment made the following points regarding the interpretation of office of profit “under” the Crown (at [31]-[34]):

• An office of profit was “under” the Crown within the meaning of s 44(iv) if the holding or continued holding of that office, or the receipt of profit from it, depended on the will or continuing will of the executive government of the Commonwealth or of a State. This interpretation gave the disqualification set out in the first clause of s 44(iv) the greatest certainty of operation that was consistent with its language and with its purpose of eliminating or reducing the executive influence over a senator or member of the House of Representatives which would arise from a relationship of financial dependency.
• Under this interpretation, the disqualification effected by s 44(iv) had two distinct aspects.
• Under the first aspect, s 44(iv) operated to disqualify any person who held any office of profit to which that person had been appointed at the will of the executive government of the Commonwealth or of a State. To this aspect of the section’s operation, the security of the person’s tenure in the office and the means by which the person might be removed from the office were irrelevant. It was mere appointment to an office of profit at the will of an executive government which gave rise to the capacity for the executive government to influence the performance of the parliamentary duty of a senator or member, being influence it was the constitutional design to eliminate.
• Under the second aspect, s 44(iv) operated to disqualify a person who held an office of profit to which that person had not been appointed at the will of the executive government of the Commonwealth or of a State if the continued holding of that office or continued profiting from holding that office was dependent on the will of the executive government of the Commonwealth or of a State. The security of the person’s tenure and remuneration in such an office, the means by which the person might be suspended or removed from such an office, and any means by which emoluments of the office might be withheld were all of critical importance to this aspect of the operation of s 44(iv). However, this second aspect of the section’s operation would be engaged only if the executive government had such power over the continued holding of the office or profiting from holding the office as to amount to effective control over holding or profiting from holding the office.

The Joint Judgment said that the first aspect of the section’s operation – appointment to an office of profit at the will of the executive government – explained the disqualification of Mr Cleary in Sykes v Cleary [1992] HCA 60; (1992) 176 CLR 77, and of Ms Hughes in Re Nash (No 2) [2017] HCA 52; (2017) 92 ALJR 23; (2017) 350 ALR 204 as each had held an office of profit to which officeholders were appointed by executive government. (Mr Cleary had been appointed as a permanent officer in the teaching service of the Victorian Education Department. Ms Nash had been appointed as a part-time member of the Administrative Appeals Tribunal.) The Joint Judgment added that it had not mattered in Sykes v Cleary that Mr Cleary’s office had become “unattached” and that he had taken leave without pay and that, in each case, the security of Mr Cleary’s and Ms Hughes’ tenure, had been irrelevant (at [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].

However, the Joint Judgment went on to indicate that, in the case before it, the first aspect of s 44(iv)’s operation was not relevant because the candidate did not hold an office of profit to which officeholders were appointed by executive government, the offices of mayor and of councillor being offices to which officeholders were elected. Therefore, the candidate’s position turned on the second aspect of the operation of s 44(iv) (at [36]).

The Joint Judgment then considered the provisions of the LGA and subordinate legislation and found that there was no power conferred on the executive government of Tasmania over the continued holding of the office or continued profiting from holding the office of mayor or of councillor which was sufficient to amount to effective control over holding or profiting from holding those offices (at [43]). Accordingly, the second aspect of the operation of s 44(iv) was not engaged. The Joint Judgment’s reasons for this finding were, in summary, as follows (at [44]-[51]):

• Provisions of the LGA which allowed the Minister to make orders imposing functions on mayors and clarifying the functions of mayors and councillors did not give the Minister any power over the holding of the office or profiting from holding the office of mayor or of councillor.
• Provisions of the LGA which provided for the suspension, removal or dismissal of a councillor from office by or on the recommendation of the Minister did not confer a power which could be characterised as rising to the level of control because the permissible exercise of the power was bounded by the subject matter, scope and purposes of the LGA and subject to the supervisory jurisdiction of the Supreme Court of Tasmania.
• The authority of the Governor to promulgate subordinate legislation setting the remuneration attaching to the holding of the offices was likewise bounded by the subject matter, scope and purposes of the LGA and subject to the supervisory jurisdiction of the Supreme Court of Tasmania and, therefore, did not amount to executive control over profiting from those offices so as to engage s 44(iv).

Introduction

The New South Wales Court of Appeal in Lodin v Lodin [2017] NSWCA 327 has found that the former spouse of a deceased person had not established any factors warranting her making a family provision application under Ch 3 of the Succession Act 2006 (NSW) (“SA”), being factors which indicated that she would be regarded as a natural object of testamentary recognition by the deceased person. The reasons given for the finding included that the financial affairs between the parties had been resolved by final orders of the Family Court of Australia and, in the absence of evidence showing a significant causal link between the deceased’s conduct towards the former spouse and her circumstances of need at the date of the hearing of the application, the Family Court orders retained their significance for the purposes of the application.

Relevant provisions

Chapter 3 of the SA deals with family provision applications. Under s 57(1)(d), a former wife or husband of a deceased person is an eligible person who may apply to the Court for a family provision order in respect of the estate of the deceased person. However, by s 59(1), the Court may only make a family provision order if the Court is satisfied of the following three matters:

• the person in whose favour the order is to be made is an eligible person (s 59(1)(a));
• in the case of a person who is an eligible person by reason only of para (d) (former spouse), (e) (dependent grandchild or member of the household) or (f) (close personal relationship) of s 57(1) — having regard to all the circumstances of the case (whether past or present), there are factors which warrant the making of the application (s 59(1)(b)); and
• at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the eligible person has not been made by the will of the deceased person, or by the operation of the intestacy rules in relation to the estate of the deceased person, or both (s 59(1)(c)).

Under s 59(2), the Court may make such order for provision out of the deceased’s estate as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made.

Section 60(1) provides that the Court may have regard to the matters set out in s 60(2) for the purpose of determining:

• whether the applicant is an eligible person (s 60(1)(a)); and
• whether to make a family provision order and the nature of any such order (s 60(1)(b)).

Section 60(2) then sets out a long list of matters which may be considered by the Court.

Background

The deceased (“Deceased”) and his former wife had been in a relationship which lasted less than 6 years. Their marriage had lasted only about 19 months. At the time of the Deceased’s death, the parties had been separated for about 24 years, and divorced nearly 19 years. There was only one child of the relationship – R, a daughter – whom the former wife had raised after the breakdown of the marriage. The parties’ financial affairs had been resolved by orders of the Family Court of Australia after a contested hearing. Subsequently, the former wife had pursued the Deceased and his resources through refusal of access to R, reviews of child support, professional misconduct claims (the Deceased had been a medical practitioner), police complaints, and actions for damages. The Deceased had died intestate and, under the laws of intestacy, R was entitled to receive the whole of the Deceased’s estate which was valued in excess of $5 million.

The former wife applied for a family provision order under Ch III of the SA. At first instance, the judge made an order that the former wife receive a lump sum legacy of $750,000 by way of provision from the Deceased’s estate. R, who was the administrator of the Deceased’s intestate estate, appealed.

Decision on appeal

The Court of Appeal (Basten JA, White JA and Sackville AJA) allowed the appeal and set aside the legacy.

Sackville AJA

Construction of ss 59(1)(b) and 60

Sackville AJA made the following observations about the construction of ss 59(1)(b) and 60 of the SA. References to the cases have, for the most part, been omitted.

• The language used in s 9(1) of the former Family Provision Act 1982 (NSW) had contemplated the possibility that the Court might deal with the issue of whether there were factors warranting the making of the application as a threshold or preliminary question. It was not necessary to decide whether the language of s 59(1)(b) of the SA precluded determining this issue as a separate question. It was enough to observe that the legislation no longer expressly contemplated that the issue might be decided in advance of other issues in the case (at [110]).
• When ss 59(1)(b) and 60 of the SA were read together they were to be understood as allowing the Court to have regard to any of the matters in s 60(2), where relevant, when determining whether there were factors which warranted the making of the application. What was relevant in a particular case would depend on the particular circumstances (at [112]).
• Section 59(1)(b) was not co-extensive with s 59(1)(c). Only if the eligible person within the categories referred to in s 59(1)(b) showed that there were factors warranting the application could the Court make a family provision order in accordance with the criteria laid down by s 59(1)(c) (at [113]).
• The starting point for the application of s 59(1)(b) was that an eligible person such as a former spouse or grandchild of the deceased was not normally regarded as a natural object of testamentary recognition by the deceased. Therefore, in order to satisfy s 59(1)(b), an applicant had to establish that there were circumstances that justified regarding the applicant as a natural object of testamentary recognition by the deceased. Those circumstances had to go beyond the bare fact of a familial (or, in the case of a former spouse, a previous familial) relationship and had to be such as to demonstrate a social, domestic or moral obligation on the deceased to make some provision for the applicant (at [114]).
• In contrast, the starting point for the inquiry under s 59(1)(c) was that the applicant was a person who could ordinarily be regarded as a natural object of the deceased’s testamentary recognition and so was entitled to have his or her application for a family provision order considered by the Court. The application was then to be assessed in accordance with the two-step approach in Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 (at [117]).
• A finding that an applicant had shown that there were factors warranting the application, thus satisfying s 59(1)(b), did not necessarily mean that the application was bound to succeed as, for example, it might fail because the estate was relatively small and there were other eligible persons whose needs were greater than the applicant’s or whose relationship with the deceased was closer and more mutually supportive. In deciding whether to make a family provision order the Court, depending on the circumstances, could take into account matters specified in s 60(2) that had little or no bearing on the question posed by s 59(1)(b) (at [119]).

Former spouse and factors warranting

As to the approach to be taken in deciding whether a former spouse had satisfied s 59(1)(b), Sackville AJA said that it was difficult to see how a former spouse could show that there were factors warranting the making of an application simply by relying on the existence of the marriage and the fact that he or she now had unmet financial needs, and that this position was unlikely to be different even if the estate was a relatively large one (at [126]).

Thus, his Honour further said that something more would usually be required for the applicant to show that he or she was a natural object of testamentary recognition by the deceased person. While all the circumstances of the case would have to be taken into account, his Honour indicated that matters of significance would be:

• whether the applicant and the deceased had finalised their financial relationship at the time of the divorce or subsequently. While a final property settlement was not necessarily an absolute bar to a family provision application being considered on its merits, in most cases such a settlement was likely to terminate any obligation on the deceased to make testamentary provision for the former spouse;
• whether there were features of the relationship between the applicant and the deceased which created a moral obligation on the deceased to make testamentary provision for the applicant, for example, physical or sexual abuse during the marriage (or later) causing the applicant to suffer a physical or psychological disability which impaired his or her capacity to earn an adequate income. However, care had to be taken to ensure that a family provision application would not become a forum for litigating questions of matrimonial fault long since removed from family law (at [127]-[129]).

Trial judge’s decision

The trial judge had found that the former wife had established factors warranting the making of the application for, principally, the following reasons:

• The Deceased’s estate comprised ample resources to make adequate provision for the former wife and still provide a substantial endowment for R, and it was “unbecoming” for the former wife to be left in circumstances of need while the daughter she had raised inherited in excess of $5 million.
• The relationship between the parties and the conduct of the Deceased towards the former wife were responsible to some extent for the former wife’s circumstances of need at the date of the hearing and for her persecution of the Deceased after the marriage had broken down.

As regards the first reason, Sackville AJA said that the approach taken was wrong because it assumed that a deceased person had a moral responsibility to make testamentary provision for a former spouse simply because the estate was a large one and the sole beneficiary of the estate was a member of the deceased’s family for whom the former spouse had had some responsibility. Therefore, whether or not the passing of the whole estate to R was “unbecoming” was not material to the resolution of the issue of whether there were factors warranting the making of the application and was an irrelevant consideration (at [141]-[145]).

As regards the second reason, Sackville AJA said, amongst other things, that the psychiatric evidence did not provide a foundation for the trial judge’s finding (at [146]-[160]).

Accordingly, his Honour concluded that the trial judge’s evaluative judgment required by s 59(1)(b) of the SA was affected by a significant error.

Reconsideration

After reconsidering the case, Sackville AJA found that the evidence did not establish that there were factors warranting the former wife making a family provision application. His Honour’s reasons were as follows (at [162]-[169]):

• The marriage had effectively ended a quarter of a century before the hearing of the former wife’s application, and the relationship between the Deceased and the former wife had lasted for less than 6 years and the marriage itself for only 19 months.
• The financial affairs between the Deceased and the former wife had been resolved by final orders of the Family Court. This was an important consideration counting against her application because, in the absence of evidence demonstrating a significant causal link between the Deceased’s conduct towards the former wife and her financial needs at the date of the hearing, the Family Court orders retained their significance for the purposes of the application.
• The Deceased had meticulously complied with his obligations to provide financial support for R, support which had been reasonably substantial. Moreover, he from time to time had given additional financial support over and above his legal responsibilities. At the same time, the former wife had not been entirely honest in her claims for support.
• The former wife’s financial needs at the date of the hearing and for a considerable period prior to that date were due to a combination of factors which included her own decisions to institute and maintain legal proceedings against the Deceased that ultimately yielded no benefit, as well as to her having received injuries in a series of motor vehicle accidents which had had a severe impact on her ability to join or re-join the workforce. The Deceased did not come under a moral duty to provide for his former wife because of injuries entirely unrelated to the parties’ relationship.
• The former wife had engaged in relentless persecution of the Deceased which had extended to the making of serious allegations against him which, apart from claims of professional misconduct, had not been upheld. If the former wife’s persecution of the Deceased had been the product of a psychiatric illness or genuine disability induced by the Deceased’s conduct or perhaps by the nature of the parties’ relationship, then the persecutory conduct might have been given relatively little weight but there was no evidence establishing such a causal relationship and so the former wife’s conduct counted against her entitlement to make a family provision application against the Deceased’s estate.
• The former wife had had responsibility for R after the marriage had broken down but the determination in the Family Court had been made after taking into account that she would have the custody and care of R. While the former wife’s role as a single parent had affected her ability to resume remunerative employment, it was also necessary to have regard to the Deceased’s financial contributions to R’s maintenance and education. The former wife’s refusal to allow the Deceased access to R, while not a critical matter, was not irrelevant in determining whether the Deceased had a moral responsibility to make testamentary provision for the former wife.

Other judges

Basten JA agreed with Sackville AJA, subject to two “minor reservations” as follows (at [1]-[3]):

• There might be doubt as to whether the factors set out in s 60(2) of the SA governed the exercise of the function under s 59(1)(b) as s 60(1)(a) did not clearly identify that operation. However, this made no difference to the outcome of the case, might never affect the outcome of any similar proceedings, and might never need to be decided.
• The SA did not require the two-step approach adopted in Singer v Berghouse.

White JA also agreed with Sackville AJA but made a number of additional observations (at [4]-[15]). These included the following:

• The suggestion by the Court of Appeal in Brown v Faggoter [1998] NSWCA 44 that the requirement that an application was warranted was fulfilled if the application had reasonable prospects of success was not the test to be applied.
• The case raised no issue as to whether or not a two-step approach was required by s 59(1)(c) of the SA and, therefore, it was not necessary to express a view on that question.

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.”

Introduction

The Supreme Court of New South Wales in Re LS [2017] NSWSC 1667 has, on an urgent application by the de facto partner of a person on life support, authorised the making of a statutory will on the person’s behalf pursuant to Pt 2.2 Div 2 of the Succession Act 2006 (NSW) (“SA”). The person was unconscious, had no realistic prospect of recovery and life support was expected to be terminated in a matter of days.

Part 2.2 Div 2

Part 2.2 Div 2 of the SA (ss18 – 26) contains provisions governing the making of court-authorised wills or “statutory wills” for persons who lack testamentary capacity. Under s 18, the Court may, on application, make an order authorising, amongst other things, a will to be made, in specific terms approved by the Court, on behalf of a person who lacks testamentary capacity. Section 19 of the SA requires that the leave of the Court be obtained for the making of an application to the Court for an order under s 18 and sets out the information that must be given to the Court in support of an application for leave to apply for such an order. Section 22 provides that the Court must refuse leave to apply for an order under s 18 unless the Court is satisfied about certain matters.

Background

The person in question, LS, had recently suffered an aneurysm and stroke, and was unconscious and on life support. The medical opinion was that LS had no realistic prospect of recovery and plans were under way to terminate life support after LS’s sisters had arrived from New Zealand to say goodbye. It was expected that life support would be terminated within a few days’ time.

The Plaintiff, who was LS’s de facto partner, made an urgent application to the Supreme Court which sought that the Court authorise the making of a will for LS that:

• gave all of LS’s New Zealand real property to LS’s mother and sisters;
• gave $50,000 to each of the Plaintiff’s two sons out of the New Zealand assets; and
• gave the residue of LS’s assets to the Plaintiff.

The application was supported by the Plaintiff’s sons. The evidence adduced on behalf of the Plaintiff included the following:

• The Plaintiff and LS, who was originally from New Zealand, had been in a de facto relationship for 20 years.
• The Plaintiff’s two sons had lived with the Plaintiff and LS since the commencement of the de facto relationship. LS had no children of her own.
• Earlier in 2017, the Plaintiff and LS had discussed their respective testamentary wishes and dispositions, and LS had said that she would like the Plaintiff to obtain LS’s half interest which she had in a property on the South Coast of New South Wales together with the residue of her NSW assets, and that LS’s mother and sisters, who lived in New Zealand, should receive all of her assets in New Zealand.
• The New Zealand assets were worth approximately $800,000, and the NSW assets approximately $500,000.
• There was no evidence of any prior will of LS.

Decision

The application was heard by Rein J who said (at [5]) that if LS died intestate the Plaintiff would, under NSW law, inherit all of LS’s NSW assets, and possibly all her New Zealand assets as well.

His Honour was satisfied that the Plaintiff had, pursuant to s 19 of the SA, given to the Court the information required to support her application for leave (at [6]-[12]).

His Honour then referred to the matters in s 22 of the SA and found that four of the five matters about which the Court was required to be satisfied had been satisfied (at [13]-15]):

• LS was incapable of making a will (see s 22(a)).
• There was reason to believe that the proposed will was one which LS would have made if she had had testamentary capacity (see s 22(b)).
• The Plaintiff was the appropriate person to apply for the order to be made (see s 22(d)).
• It was appropriate for the orders to be made (s 22(c)).

As to the fifth matter, set out in s 22(e) of the SA, his Honour observed at [16] that this required the Court to refuse leave to make an application for an order under s 18 unless the Court was satisfied that “adequate steps” had been taken to allow representation of all persons with a legitimate interest in the application, including persons who had reason to expect a gift or benefit from the estate of the person in relation to whom the order was sought.

His Honour noted (at [17]) that neither LS’s mother nor her sisters had been informed of the application but that there was evidence that LS’s mother was not, due to her being upset at LS’s condition, in a position to receive information about the proposed will. His Honour also noted that the Plaintiff had given evidence that she thought that LS’s sisters, if informed of the application, might think that the Plaintiff was trying to make a “grab” for LS’s money.

His Honour accepted that, generally speaking, it would be necessary for a person’s mother and siblings to be informed of the application for there to be “adequate steps” taken as referred to in s 22(e), but considered, having regard to the following important matters, that adequate steps had been taken in the circumstances (at [17]):

• LS had lived in a de facto relationship with the Plaintiff for 20 years.
• The proposed will not only did not exclude LS’s mother and sisters but positively provided that they were to receive more than half of LS’s net assets. Therefore, the persons who might have reason to expect a gift or benefit would have that expectation met.
• If the will was not made there was a risk to LS’s mother and sisters that they would receive no benefit from LS’s estate.
• The person with the most interest in the application was the Plaintiff, and the persons next interested were the Plaintiff’s sons.
• The matter was highly urgent and ‘adequacy’ was context dependant.

His Honour added (at [18]) that it was of “crucial significance” that the interests of LS’s mother and sisters were actually advanced, rather than adversely affected, by the proposed will and so considered that if they had been informed of the details of the application, they would have had reason to support it rather than to oppose it.

Accordingly, his Honour concluded (at [19]), “not without some hesitation”, that it was appropriate to authorise the making of the will.