Re Gallagher - [2018] HCATrans 46

[2018] HCATrans 046

IN THE HIGH COURT OF AUSTRALIA

SITTING AS THE COURT OF
DISPUTED RETURNS

Office of the Registry
Canberra No C32 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 KATY GALLAGHER

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

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 14 MARCH 2018, AT 10.19 AM

MR S.P. DONAGHUE, QC, Solicitor‑General of the Commonwealth of Australia: May it please your Honours, I appear with my learned friends, MR P.D. HERZFELD and MS J.D. WATSON, for the Attorney‑General of the Commonwealth. (instructed by Australian Government Solicitor)

MR J.T. GLEESON, SC: May it please the Court, I appear with MR J.E. MACK for Senator Gallagher. (instructed by Maurice Blackburn Lawyers)

KIEFEL CJ: Yes, Mr Solicitor.

MR DONAGHUE: Your Honours, this reference from the Senate concerns whether Senator Gallagher was incapable of being chosen as a senator at the 2016 federal election by reason of section 44(i) of the Constitution. There is no dispute that both at the time when Senator Gallagher nominated as a candidate at that election on 31 May 2016, and indeed also on the day of the polling on 2 July 2016, Senator Gallagher was a British citizen. It follows that the senator held a status that, according to the natural and ordinary meaning of section 44(i), rendered her incapable of being chosen as a senator at that election.

The dispute concerns whether Senator Gallagher falls within an exception that, as a matter of constitutional implication, qualifies the express language of section 44(i). In addressing that issue, I propose to structure the Attorney‑General’s oral submission in three parts: first, to address what this Court decided in Re Canavan and how the principles identified in that case apply to Senator Gallagher; second, to respond to some of the specific arguments that are advanced on the senator’s behalf; and, third, in the alternative, to address, if it is relevant to ask whether the senator took all steps reasonably required by foreign law to renounce her foreign citizenship, the reasons why, in our submission, she did not do so.

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 of the text of section 44(i).

Without taking your Honours through the references in the judgment, that phrase, “the natural and ordinary meaning of the text”, appears many, many times in paragraphs 19, 27, 47, 48, 52 and 57, and it was principally because of the ordinary, natural meaning of the text that…

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 Gallagher

Details

AGLC: Re Gallagher [2018] HCATrans 46
Case: [2018] HCATrans 46
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal concerning the interpretation of section 100 of the *Bankruptcy Act 1966* (Cth) in *Re Gallagher*. The dispute arose from a trustee in bankruptcy's claim to certain property, which the bankrupt argued was protected from seizure by section 100.

The central legal issue before the Court was whether the bankrupt's interest in a discretionary trust constituted property divisible among his creditors under the *Bankruptcy Act 1966* (Cth). Specifically, the Court had to determine if the bankrupt's potential entitlement to distributions from the trust, contingent on the trustees' discretion, was a vested or contingent interest that passed to the trustee in bankruptcy.

The Court reasoned that a mere expectancy or hope of receiving a benefit from a discretionary trust, which is entirely dependent on the exercise of the trustees' discretion, does not constitute a proprietary interest that is divisible among creditors under the *Bankruptcy Act 1966* (Cth). Applying established principles of trust law, the Court held that until the trustees exercise their discretion and make a distribution, the bankrupt has no enforceable right or interest in the trust property. Consequently, such an interest does not vest in the trustee in bankruptcy. The appeal was dismissed.

Orders