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Re Canavan

Re Canavan

Case [2017] HCA 45 27 October 2017

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HIGH COURT OF AUSTRALIA
KIEFEL CJ,
BELL, GAGELER, KEANE, NETTLE, GORDON AND EDELMAN JJ
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
Re Canavan
Re Ludlam
Re Waters
Re Roberts [No 2]
Re Joyce
Re Nash
Re Xenophon
[2017] HCA 45
27 October 2017
C11/2017, C12/2017, C13/2017, C14/2017, C15/2017, C17/2017 and C18/2017
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Re Canavan

Details

AGLC: Re Canavan [2017] HCA 45
Case: [2017] HCA 45
Decision Date: 27 October 2017

CaseChat Overview and Summary

The High Court of Australia, sitting as the Court of Disputed Returns, considered references concerning several federal parliamentarians, including Senators Canavan, Ludlam, Waters, Roberts, and Nash, and the Member for New England, Barnaby Joyce MP. The central dispute revolved around whether these individuals were incapable of being chosen or of sitting as members of Parliament by reason of section 44(i) of the Constitution, which disqualifies any person who is "a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power."

The Court was required to determine the proper construction of section 44(i) of the Constitution, specifically whether it contains an implied mental element regarding the acquisition or retention of foreign citizenship, and whether the referred persons were subjects or citizens of a foreign power, or entitled to the rights or privileges of such, for the purposes of this section. The Court also had to decide whether vacancies existed in the representation of various states in the Senate and the House of Representatives as a result of any contravention of section 44(i), and if so, how those vacancies should be filled.

The Court held that section 44(i) of the Constitution is contravened where a person is a subject or citizen of a foreign power, or entitled to the rights or privileges of such, at the time of nomination for election, regardless of their knowledge or intention. In the cases of Senators Ludlam, Waters, Roberts, and Mr Joyce MP, the Court found that they were indeed subjects or citizens of foreign powers, thereby creating vacancies in their respective parliamentary seats. For Senator Canavan and Senator Xenophon, the Court determined that they had taken all reasonable steps to renounce any foreign citizenship and were not subject to disqualification.

Consequently, the Court declared vacancies in the Senate for Senators Ludlam, Waters, Roberts, and Nash, and in the House of Representatives for Mr Joyce MP. The vacancies for Senators Ludlam, Waters, Roberts, and Nash were to be filled by a special count of ballot papers, while the vacancy for Mr Joyce MP was to be filled by a by-election. No vacancies were found in the cases of Senator Canavan and Senator Xenophon.

Orders

Orders of the court

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 Senator the Hon Fiona Nash 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 C18/2017

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 South Australia in the Senate for the place for which Senator Xenophon was returned?

Answer

There is no vacancy by reason of s 44(i) of the Constitution in the representation of South Australia in the Senate for the place for which Senator Nick Xenophon 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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

KIEFEL CJ, BELL, GAGELER, KEANE, NETTLE, GORDON AND EDELMAN JJ (dissent)

In the reference concerning Mr Joyce MP, it was common ground, and consistent with authority[75], that in the event that Mr Joyce MP was incapable of being chosen as a member of the House of Representatives, the election of Mr Joyce MP was void, and a by-election must be held in order to elect the member for New England.[75]Sykes v Cleary (1992) 176 CLR 77 at 102, 108, 130‑131, 132; Free v Kelly (1996) 185 CLR 296 at 303‑304. Cf In re Wood (1988) 167 CLR 145 at 165‑166.Conclusions In the reference concerning Senator Canavan, the questions should be answered as follows:(a)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.(b)Does not arise.(c)No further order is required.(d)No further order is required. In the reference concerning Mr Ludlam, the questions should be answered as follows:(a)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.(b)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.(c)Does not arise.(d) Unnecessary to answer. In the reference concerning Ms Waters, the questions should be answered as follows:(a)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.(b)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.(c)Does not arise.(d) Unnecessary to answer. In the reference concerning Senator Roberts, the questions should be answered as follows:(a)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.(b)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.(c)Unnecessary to answer.(d) Unnecessary to answer. In the reference concerning Mr Joyce MP, the questions should be answered as follows:(a)By reason of s 44(i) of the Constitution, the place of the Member for New England, the Hon Barnaby Joyce MP, is vacant.(b)There should be a by-election for the election of the Member for New England.(c)Unnecessary to answer.(d) Unnecessary to answer. In the reference concerning Senator Nash, the questions should be answered as follows:(a)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 Senator the Hon Fiona Nash was returned.(b)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.(c)Unnecessary to answer.(d) Unnecessary to answer.

Ratio Decidendi

Legal Principle Established

Established by:

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Actions

Citations

Re Canavan [2017] HCA 45

Most Recent Citation

EHT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 309

Cases Citing This Decision

Kirk v Commonwealth of Australia [2025] FCA 838
Citation 1 (Para 1)

…citizen of a foreign power” used in s 44(i) of the Constitution , which was considered by the High Court in Re Canavan (2017) 263 CLR 284; [2017] HCA 45. Under the heading “Subject or citizen – the role of foreign law”, the High Court said (at 304-5 [37]): Whether a person has the status of a subject or a citiz…
Tutoveanu v Velez [2025] NSWSC 359
Citation 2 (Para 53)

…The disqualification operates at the point of nomination: Re Canavan (2017) 263 CLR 284 at 313-314; [2017] HCA 45 at [72].…
Doma ACT Pty Ltd v LN Sydney Pty Ltd [2024] ACTSC 270
Citation 3

…R 457 GE Capital Finance Australasia Pty Limited v Commissioner of Taxation [2011] FCA 849; 219 FCR 420 Osborne v Smith (1960) 105 CLR 153 Re Canavan [2017] HCA 45; 263 CLR 284 Re Butlin’s Settlement Trusts [1976] Ch 251 Simic v New South Wales Land and Housing Corp [2016] HCA 47; 260 CLR 85 SAMM Property Holdin…
In the Estate of Coonan [2023] ACTSC 320
Citation 4

…TSC 130 Osborne v Smith (1960) 105 CLR 153 Perpetual Trustee Co Ltd v Fairlie-Cunninghame (1993) 32 NSWLR 377 Estate Rofe [2021] NSWSC 257 Re Canavan [2017] HCA 45; 263 CLR 284 Re Estate of Hodges (dec’d); Shorter v Hodges (1998) 14 NSWLR 698 Timbury v Coffee (1941) 66 CLR 277 Watson v Kerridge (1888) 9 LR (NSW)…
2206200 (Refugee) [2023] AATA 3557
Citation 5

…aw v Briginshaw (1938) 60 CLR 336 Drake v MIEA (1979) 24 ALR 577 Mian v MILGEA (1992) 28 ALD 165 Re Canavan [2017] HCA 45 Singh v MIEA (FCA, Sackville J, 6 December 1994) Sykes v Cleary (1992) 176 CLR 77 Tarasovski v MILGEA (1993) 45 FCR 570 Zhao v MIMA [2000] FCA 1235 Any references appearing in square brackets…
Kuster and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2023] AATA 3486
Citation 6 (Para 6)

…nnan, Deane, Dawson and Gaudron JJ respectively.’ [146] [146] Re Canavan; Re Ludlam; Re Waters; Re Roberts [No 2]; Re Joyce; Re Nash; Re Xenophon [2017] HCA 45 at [37]-[38].…
EON17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 650
Citation 7 (Para 12)

…that the question whether a person is or is not the citizen of a particular country necessarily depends on the law of that country: Re Canavan (2017) 263 CLR 284 at [37]. It should perhaps be noted, in this context, that the existence, nature and scope of any rules and principles of the law of a foreign jurisdiction…
Alarcos and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2023] AATA 857
Citation 8 (Para 31)

…’s attention to the following observations of the High Court in Re Canavan; Re Ludlam; Re Waters; Re Roberts [No 2]; Re Joyce; Re Nash; Re Xenophon [2017] HCA 45 at [37]: “Whether a person has the status of a subject or a citizen of a foreign power necessarily depends upon the law of the foreign power. That is s…
JMWX and CVDK and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2023] AATA 526
Citation 9 (Para 25)

…ds near certainty) to warrant being called an entitlement. ”[15] [14] Citing Re Canavan (2017) 263 CLR 284 at [37]. [15] Applicants’ submissions at [26]. (k)If there is uncertain evidence about the circumstances of the exercise of that discretion or evidence that the discretion might realistically be exercised agains…
Taylor v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 144
Citation 10 (Para 6)

…Moreover, the renunciation of citizenship is a well-known concept with which the High Court dealt with in cases such as Re Canavan (2017) 263 CLR 284 at 306–307 [44]–[46] per Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ. Their Honours cited with approval what Brennan J had said in Sykes v Cleary (19…
Matthews v Racing New South Wales [2022] NSWSC 182
Citation 11

…mmigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 Racing Victoria Ltd v Kavanagh [2017] VSCA 334 Re Canavan (2017) 263 CLR 284; [2017] HCA 95 Yorke v Lucas (1985) 158 CLR 661; [1985] HCA 65 Category: Principal judgment Parties: Adam Matthews (Plaintiff) Racing New South Wales (First Defendant) Racing…
Chetcuti v The Commonwealth [2021] HCA 25
Citation 12 (Para 4)

…Citizenship) Regulations 1975 (Cth), reg 4. [293]cf Sykes v Cleary (1992) 176 CLR 77 at 107 per Mason CJ, Toohey and McHugh JJ. [294]cf Re Canavan (2017) 263 CLR 284 at 329 [134] per Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ.…
JGGN and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 2405
Citation 13 (Para 7)

…of these cases, Torres Strait Islanders are also beyond the scope of the aliens power. Since settlement, Aboriginal people have been inseparably tied to the land of Australia generally, and thus to the political community of Australia, with metaphysical bonds that are far stronger than those forged by the happe…
Newman v Minister for Health and Aged Care [2021] FCA 517
Citation 14 (Para 28)

…In Re Canavan (2017) 263 CLR 284 at [131], the High Court (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ) referred to a person’s “right of abode” which was said to include “the right to enter and to reside in the country of nationality”.…
John and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 77
Citation 15 (Para 5)

…t has maintained that he was born in Kuwait in 1985 and deported to Iraq in 1993 because of his Bidoon status. States do not deport their own citizens - they deport people who are non-citizens or who have otherwise had their citizenship stripped from them rendering them stateless. The Tribunal accepts that, as t…
BJB17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1683
Citation 16 (Para 29)

…oubt that the question whether a person is or is not the citizen of a particular country necessarily depends on the law of that country: Re Canavan (2017) 263 CLR 284 at [37]. It should perhaps be noted, in this context, that the existence, nature and scope of any rules and principles of the law of a foreign jurisdic…
Mocenigo and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 3599
Citation 17 (Para 3)

…his principle is consistent with the judgement is Australian High Court, in Sykes and Cleary (1992) 176 CLR 77 (and as affirmed in Re Canavan [2017] HCA 45) where the Court stated that renunciation of a country’s citizenship must be according to the laws of the country who citizenship is being renounced. Therefo…
Minogue and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 3697
Citation 18

…[24] R v Canavan [2017] HCA 45, 263 CLR 284, 91 ALJR 1209, 349 ALR 534…
BTX17 v Minister for Immigration (No.2) [2020] FCCA 2270
Citation 19 (Para 2)

…No 2) (1992) 176 CLR 77, at page 106 [17] Re Canavan; Re Ludlam; Re Waters; Re Roberts [No 2]; Re Joyce; Re Nash; Re Xenophon [2017] HCA 45, at [37] [18] Sykes v Cleary (No 2) (1992) 176 CLR 77, at page 106, referring to Lichtenstein v Guatemala [1955] I.C.J. 4 [19] Re Canavan; Re Ludlam; Re Waters; Re Roberts […
Commonwealth Bank of Australia v Haughton [2020] SASC 135
Citation 20 (Para 34)

…Court’s decision in Re Canavan , still less addressed by this Court in these proceedings, was never explained by Mr Haughton.[19] [19] Re Canavan (2017) 263 CLR 284, where the High Court sat as the Court of Disputed Returns under the Commonwealth Electoral Act 1918 (Cth).…
EHT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 309
Citation 21 (Para 22)

…law that every sovereign state has the right, by its own legislation, to settle the rules relating to the acquisition of its nationality: Re Canavan (2017) 263 CLR 284 at 304–305 [37] per Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ.…
R v Collaery (No 2) [2019] ACTSC 296
Citation 22 (Para 1)

…is where there is no sufficient contradictor to ensure that all relevant arguments are presented. An example of such a case appears to be Re Canavan [2017] HCA 45; 263 CLR 284 at [7].…
Re Gallagher [2018] HCA 17
Citation 23 (Para 3)

…efer to the process of being chosen, of which nomination is an essential part[2]. [1] Re Canavan (2017) 91 ALJR 1209 at 1213 [3]; 349 ALR 534 at 537; [2017] HCA 45. [2] Sykes v Cleary (1992) 176 CLR 77 at 100-101; [1992] HCA 60.…
Re Kakoschke-Moore [2018] HCA 10
Citation 24 (Para 27)

…206]‑[211], 561 [293]; 343 ALR 181 at 197‑198, 201, 221‑222, 237; Re Canavan (2017) 91 ALJR 1209 at 1232 [138]; 349 ALR 534 at 564; [2017] HCA 45.…
Re Lambie [2018] HCA 6
Citation 25 (Para 22)

…directed in terms of "eliminating or reducing ... executive influence over the House"[26]. [24](2017) 91 ALJR 1209 at 1219 [48]; 349 ALR 534 at 546; [2017] HCA 45. [25] Re Day (No 2) (2017) 91 ALJR 518 at 535 [97]; 343 ALR 181 at 201; [2017] HCA 14. See also 91 ALJR 518 at 535 [98], [100], 542 [156], 556 [263];…
Re Gallagher [2018] HCATrans 46
Citation 26

…Can I start then with Re Canavan (2017) 91 ALJR 1209. I propose to make five points about what that case decided and then to apply those identified principles to the facts. The first and we submit rather unsurprising point is that Re Canavan affirms that the starting point is the text, the ordinary and natural meaning…
Fair Work Ombudsman v NoBrace Centre Pty Ltd [2018] FCCA 378
Citation 27

…ions referred to the Court of Disputed Returns pursuant to s 376 of the Commonwealth Electoral Act 1918 (Cth) concerning Senator Canavan & Ors [2017] HCA 45 Johnson v Youden [1950] 1 KB 544 Jones v Dunkel (1959) 101 CLR 298 Kuhl v Zurich Financial Services (2011) 243 CLR 361 Lewis v Condon (2013) 85 NSWLR 99 Mag…
Re Nash (No 2) [2017] HCA 52
Citation 28 (Para 1)

…with any directions necessary to give effect to the conduct of that special count being made by a single Justice. [1] Re Canavan (2017) 91 ALJR 1209; [2017] HCA 45.…
Racing Victoria Ltd v Kavanagh [2017] VSCA 334
Citation 29

…[102][2017] HCA 45 [55] (emphasis added) (citations omitted).…
Re Barrow [2017] HCA 47
Citation 30 (Para 8)

…e. In any event, there is a more fundamental problem with the application: it impermissibly seeks an advisory opinion from this Court. [2] Re Canavan [2017] HCA 45 at [72]. Advisory opinions…
High Court Bulletin [2017] HCAB 8
Citation 31

…C11/2017; C12/2017; C13/2017; C14/2017; C15/2017; C17/2017; C18/2017: [2017] HCA 45…

See all citing cases →

Cases Cited

Re Roberts [2017] HCA 39
Citation 1 (Para 8)

…here were any contested issues of fact was that concerning Senator Roberts. Those issues were resolved at a hearing before Keane J[5]. [5] Re Roberts [2017] HCA 39.…
Re Day (No 2) [2017] HCA 14
Citation 2 (Para 5)

…ulleton (No 2) (2017) 91 ALJR 311 at 321‑322 [57]; 341 ALR 1 at 13; [2017] HCA 4; Re Day (No 2) (2017) 91 ALJR 518 at 535 [97]; 343 ALR 181 at 201; [2017] HCA 14.…
Re Culleton (No 2) [2017] HCA 4
Citation 3 (Para 5)

…he need for an investigation into the state of mind of a candidate. [42]See Re Culleton (No 2) (2017) 91 ALJR 311 at 321‑322 [57]; 341 ALR 1 at 13; [2017] HCA 4; Re Day (No 2) (2017) 91 ALJR 518 at 535 [97]; 343 ALR 181 at 201; [2017] HCA 14.…
Singh v The Commonwealth [2004] HCA 43
Citation 4 (Para 10)

…49]. [48](1992) 176 CLR 77 at 107. [49]See Singh v The Commonwealth (2004) 222 CLR 322 at 340‑341 [30], 359 [81], 392 [179], 413‑414 [251]; [2004] HCA 43.…
Sue v Hill [1999] HCA 30
Citation 5 (Para 23)

…ered to the position taken on this point in Sykes v Cleary . [34](1992) 176 CLR 77 at 112‑114, 135‑136. [35](1999) 199 CLR 462 at 486‑487 [47]; [1999] HCA 30. [36](1999) 199 CLR 462 at 529 [175].…
Free v Kelly [1996] HCA 42
Citation 6 (Para 7)

…vour of the next candidate on that party's list. [73] Sykes v Cleary (1992) 176 CLR 77 at 102. See also Free v Kelly (1996) 185 CLR 296 at 302‑304; [1996] HCA 42. [74] In re Wood (1988) 167 CLR 145 at 166.…
Free v Kelly and Australian Electoral Commission [1996] HCA 41
Citation 7 (Para 7)

…candidate should be counted in favour of the next candidate on that party's list. [73] Sykes v Cleary (1992) 176 CLR 77 at 102. See also Free v Kelly (1996) 185 CLR 296 at 302‑304; [1996] HCA 42. [74] In re Wood (1988) 167 CLR 145 at 166.…
Sykes v Cleary [1992] HCA 60
Citation 8 (Para 3)

…nd after which s 44(i) applies until the completion of the electoral process. [1] Sykes v Cleary (1992) 176 CLR 77 at 100‑101, 108, 130‑131, 132; [1992] HCA 60. The proceedings…
In re Wood [1988] HCA 22
Citation 9 (Para 4)

…n the place for which the person was returned. [2] Commonwealth Electoral Act 1918 (Cth), s 376. See also In re Wood (1988) 167 CLR 145 at 157‑162; [1988] HCA 22.…
Nile v Wood [1987] HCA 62
Citation 10 (Para 6)

…a state of affairs involving the existence of a status or of rights under the law of the foreign power[9]. [8] Nile v Wood (1987) 167 CLR 133 at 140; [1987] HCA 62. [9]Cf Sykes v Cleary (1992) 176 CLR 77 at 107, 110, 131.…
[1993] 1 WLR 509 [1993] 1 WLR 509
Citation 11 (Para 12)

…ge as a criterion of their operation. [50]Cf Baden v Société Générale pour Favoriser le Développement du Commerce et de l'Industrie en France SA [1993] 1 WLR 509 at 575‑576; [1992] 4 All ER 161 at 235.…

Legislation Cited

Commonwealth Electoral Act 1918 (Cth) 163, 376, 377, 378
4 mentions (from Para 4)
Behan v Obelon Pty Ltd 2(1)(a), 2(1)(b)(i)
3 mentions (from Para 16)
British Nationality Act 1981 c.61 11(1), 14
3 mentions (from Para 16)
Immigration Act 1971 c.77 2(1)(a), 2(1)(b)(i)
3 mentions (from Para 16)
Nguyen v The Queen 11(1), 14
3 mentions (from Para 16)
Badenach v Calvert 12(1)(a), 5(1)
2 mentions (from Para 17)
British Nationality Act 1948 c.56 12(1)(a), 5(1)
2 mentions (from Para 17)
Australian Citizenship Act 1948 (Cth) 11
1 mention (from Para 27)
British North America Act 1867 c.3
1 mention (from Para 13)
Citizenship Act 1977 (NZ)
1 mention (from Para 21)
Constitution Act 1855 (SA)
1 mention (from Para 13)
Constitution Act 1867 (Qld) 23
1 mention (from Para 13)
Crimes Act 1961 (NZ)
1 mention (from Para 9)
Naturalization Act 1870 (UK)
1 mention (from Para 21)
New South Wales Constitution Act 1855 (Imp)
1 mention (from Para 13)
Obeid v The Queen
1 mention (from Para 13)
Status of Aliens Act 1914 (UK) 1(1)(a)
1 mention (from Para 26)
Victoria Constitution Act 1855 (Imp)
1 mention (from Para 13)
Western Australia Constitution Act 1890 (Imp)
1 mention (from Para 13)