Re Canavan; Re Ludlam; Re Waters; Re Roberts; Re Joyce; Re Nash; Re Xenophon - [2017] HCATrans 201

[2017] HCATrans 201

IN THE HIGH COURT OF AUSTRALIA

SITTING AS THE COURT OF
DISPUTED RETURNS

Office of the Registry
Canberra No C11 of 2017

B e t w e e n -
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

Office of the Registry
Canberra No C12 of 2017

B e t w e e n -
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

Office of the Registry
Canberra No C13 of 2017

B e t w e e n -
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

Office of the Registry
Canberra No C14 of 2017

B e t w e e n -
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

Office of the Registry
Canberra No C15 of 2017

B e t w e e n -
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

Office of the Registry
Canberra No C17 of 2017

B e t w e e n -
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

Office of the Registry
Canberra No C18 of 2017

B e t w e e n -
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

KIEFEL CJ
BELL J
GAGELER J
KEANE J
NETTLE J
GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 12 OCTOBER 2017, AT 10.15 AM

(Continued from 11/10/17)

____________________

KIEFEL CJ: Yes, Mr Kennett.

MR KENNETT: Your Honours, there is one aspect of the rule of recognition in Sykes v Cleary that I omitted to mention yesterday. Your Honour Justice Gageler put to Mr Gleeson a hypothetical example involving a person who is a citizen of a foreign country pursuant to some exorbitant law, a seven‑generation law or something of that sort, but who welcomes and embraces that foreign citizenship.

For our part, we would say that case could be dealt with on one of two bases. One which I think your Honour Justice Edelman suggested was that it might engage the first limb of the paragraph, at least if the person had done something identifiable and public in order to embrace a citizenship, such as getting a passport from 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; Re Ludlam; Re Waters; Re Roberts; Re Joyce; Re N...

Details

AGLC: Re Canavan; Re Ludlam; Re Waters; Re Roberts; Re Joyce; Re Nash; Re Xenophon [2017] HCATrans 201
Case: [2017] HCATrans 201
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered whether six federal parliamentarians, namely Senator Canavan, Senator Ludlam, Senator Waters, Senator Roberts, Senator Joyce, and Senator Nash, and Senator Xenophon, were incapable of being chosen or of sitting as a senator or member of the House of Representatives by reason of contravening section 44(i) of the Constitution. The dispute arose from allegations that these parliamentarians had, at the time of their nomination or election, been subjects or citizens of a foreign power, thereby potentially contravening the constitutional prohibition against dual citizens sitting in Parliament.

The central legal issue before the Court was the interpretation and application of section 44(i) of the Constitution, which disqualifies any person who is a "subject or citizen or entitled to the rights or privileges of a subject or citizen of a foreign power" from being elected or sitting as a senator or member of the House of Representatives. The Court was required to determine whether the respondents, by virtue of their foreign citizenship or entitlement to foreign citizenship, were subject to this disqualification, and if so, whether any exceptions or mitigating circumstances applied.

The Court's reasoning involved a detailed examination of the historical context and intended meaning of section 44(i). It applied the principle that the section is a strict prohibition, intended to ensure undivided loyalty to Australia by its parliamentarians. The Court found that for some respondents, their foreign citizenship at the time of nomination or election rendered them incapable of sitting in Parliament. However, for others, the Court determined that they had taken all reasonable steps to renounce their foreign citizenship prior to nomination or election, or that they were not, in fact, subjects or citizens of a foreign power in a manner that engaged the constitutional provision. The Court distinguished between being a citizen and taking steps to renounce that citizenship, and considered the practicalities of renunciation for individuals in various circumstances.

Ultimately, the Court made declarations regarding the eligibility of each parliamentarian. For Senator Canavan, Senator Joyce, Senator Nash, and Senator Roberts, the Court declared that they were not incapable of being chosen or of sitting as a senator or member of the House of Representatives. Conversely, the Court declared that Senator Ludlam and Senator Waters were incapable of being chosen or of sitting as a senator or member of the House of Representatives. Senator Xenophon was found not to have been incapable of being chosen or of sitting.

Orders