Re Day

The matter before the High Court of Australia, sitting as the Court of Disputed Returns, concerned questions referred pursuant to section 376 of the *Commonwealth Electoral Act 1918* (Cth) regarding Mr Robert John Day AO. The Attorney-General of the Commonwealth intervened in the proceedings, represented by Mr N.J. Williams SC and Mr C.L. Lenehan. Ms S. Gory appeared for Ms McEwen, and Mr J.L. Whitington appeared for Mr Robert Day.

The primary legal issue before the Court was the process for conducting a special count of ballot papers to determine the candidate entitled to be elected to a particular Senate place. This involved determining the appropriate directions for the special count and the subsequent reporting of the results to the Court. A secondary, but significant, issue arose concerning the potential constitutional qualification of a candidate who might be elected as the twelfth senator, specifically in relation to issues of Kenyan citizenship law.

The Court, by consent of the parties, made orders for a special count of ballot papers to be undertaken by the Australian Electoral Officer for South Australia, in accordance with directions set out in a schedule. These directions stipulated that the Electoral Officer was to report to the Court the twelve candidates who would be elected upon application of the rules for counting in section 273 of the *Commonwealth Electoral Act 1918* (Cth). The Court also scheduled a further hearing for 9:30 am on Wednesday, 19 April, to address any subsequent matters, with a condition that if an issue regarding a candidate's constitutional qualification was identified by Thursday, the parties were to notify the Court, otherwise the hearing would proceed. It was revealed that Mr Whitington's client, Ms Lucy Gichuhi, was the candidate in question, and her legal representatives were reviewing expert reports concerning her citizenship.