Re Feeney

[2018] HCATrans 37

[2018] HCATrans 037

IN THE HIGH COURT OF AUSTRALIA

SITTING AS THE COURT OF
DISPUTED RETURNS

Office of the Registry
  Canberra  No C31 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 DAVID FEENEY

KIEFEL CJ

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO MELBOURNE

ON FRIDAY, 23 FEBRUARY 2018, AT 10.15 AM

Copyright in the High Court of Australia

MS J.D. WATSON:   May it please the Court, I appear for the Commonwealth Attorney‑General.  (instructed by Australian Government Solicitor)

HER HONOUR:   I do not think there is any other appearance, is there?

MS WATSON:   No, your Honour.  The Attorney‑General’s submission is that the Court should today finally answer each of the questions referred to this Court by the House of Representatives on 6 December 2017 in respect of Mr Feeney.  In support of that submission I read the affidavit of Mr Andrew Kevin Gately affirmed on 22 January 2018, and the affidavit of Ms Danielle Gatehouse affirmed on 5 February 2018.

In addition, the Attorney‑General also relies upon the letter from the Speaker of the House of Representatives to the Court dated 7 December 2017 and its attachments, which were made evidence on the hearing of the reference by the orders of your Honour Chief Justice Kiefel on 19 January 2018 and the expert report of Mr Laurie Fransman QC filed by the Attorney‑General on 16 February 2018.

The Attorney‑General relies on the written submissions filed on 6 February 2018 and seeks orders in the form of the draft orders annexed to those submissions.  Since the Attorney‑General filed those written submissions Mr Feeney has filed a submitting appearance and Ms Bathal has filed short submissions concurring with the orders sought by the Attorney‑General.  The Attorney‑General is content to rely upon those written submissions filed on 6 February, but I am happy to develop those submissions if that would assist the Court.

HER HONOUR:   No, thank you, Ms Watson.  I do not think that will be necessary.  I have read them and the report of Mr Fransman.  He concludes that Mr Feeney became a citizen of the United Kingdom and Colonies by descent at the time of his birth and then was automatically reclassified a British citizen by descent subsequently.  As I understand it, Mr Feeney does not contest these findings.

MS WATSON:   Yes, that is correct, your Honour.

HER HONOUR:   I will make the orders which were proposed and attached to the Solicitor‑General’s submissions.  I propose to read them into the record.  The Court orders as follows: 

The questions referred to the Court of Disputed Returns by the Speaker of the House of Representatives in his letter dated 7 December 2017 be answered as follows:

Question (a): Whether by reason of section 44(i) of the Constitution the place of the member for Batman (Mr Feeney) has become vacant?
Answer: By reason of section 44(i) of the Constitution, the place of the member for Batman, Mr David Feeney 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 Batman.

Question (c):  What directions and orders, if any, should the Court make in order to hear and finally dispose of the 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.

Is there anything further then, Ms Watson?

MS WATSON:   No, your Honour.

HER HONOUR:   Thank you for your attendance.  The Court will now adjourn.

AT 10.19 AM THE MATTER WAS CONCLUDED