Re Kakoschke-Moore - [2018] HCA 10

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 MS SKYE KAKOSCHKE-MOORE
Re Kakoschke-Moore
[2018] HCA 10
Date of Order: 13 February 2018
Date of Publication of Reasons: 21 March 2018
C30/2017
ORDER
The questions reserved for the consideration of the Full Court under s 18 of the Judiciary Act 1903 (Cth) be answered as follows:
Question (1)
Should the vacancy in the representation of South Australia in the Senate for the place for which Skye Kakoschke-Moore was returned on 4 August 2016 be filled by a special count of the votes cast at the poll on 2 July 2016 or by some other, and if so what, method?
Answer
The vacancy in the representation of South Australia in the Senate for the place for which Skye Kakoschke-Moore was returned on 4 August 2016 should be filled by a special count of the votes cast at the poll on 2 July 2016.
Question (2)
Notwithstanding that as at 2 July 2016 and until on or about 6 December 2017 Skye Kakoschke-Moore was a British citizen, and, therefore, incapable of being chosen as a senator, does the fact that she renounced her British citizenship with effect from on or about 6 December 2017
render her capable of now being chosen to fill the vacancy by means of a special count of the votes cast on 2 July 2016?

Answer
The fact that Skye Kakoschke-Moore renounced her British citizenship with effect from 6 December 2017 does not render her capable of now being chosen to fill that vacancy.
Question (3)
If the vacancy is to be filled by a special count of the votes cast on 2 July 2016, should Timothy Storer be excluded from the special count by reason that, whereas at the time of the poll on 2 July 2016 he stood for election in a group of candidates that was accepted by the Australian Electoral Officer on behalf of the Nick Xenophon Team party, he ceased to be a member of that party on or by 6 November 2017?
Answer
Timothy Storer should not be excluded from the special count.
Representation
D F Jackson QC with A L Tokley SC and A K Flecknoe-Brown appearing on behalf of Ms Kakoschke-Moore (instructed by Nick Xenophon & Co Lawyers)
S P Donaghue QC, Solicitor-General of the Commonwealth with Z E Maud, M P Costello and J D Watson appearing on behalf of the Attorney-General of the Commonwealth (instructed by Australian Government Solicitor)
M L Abbott QC with D Agresta appearing on behalf of Mr Storer (instructed by Illes Selley Lawyers)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS
Re Kakoschke-Moore

Constitutional law (Cth) – Parliamentary elections – Reference to Court of Disputed Returns – Where Ms Skye…

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 Kakoschke-Moore

Details

AGLC: Re Kakoschke-Moore [2018] HCA 10
Case: [2018] HCA 10
Decision Date: 21 March 2018

CaseChat Overview and Summary

The High Court of Australia considered a reference concerning the representation of South Australia in the Senate following the 2016 federal election. The dispute arose because Ms Skye Kakoschke-Moore, who was returned as an elected senator for the Nick Xenophon Team (NXT), was a British citizen at the time of her nomination and election, rendering her ineligible to sit under section 44(i) of the Constitution. Mr Timothy Storer, another candidate for NXT, had ceased to be a member of the party after the election. The Attorney-General sought declarations regarding the vacancy and how it should be filled.

The Court was required to determine three principal questions. First, whether the vacancy should be filled by a special count of votes or another method. Second, whether Ms Kakoschke-Moore's subsequent renunciation of her British citizenship, after the election and after she had been declared elected, rendered her capable of filling the vacancy. Third, if a special count was to be conducted, whether Mr Storer should be excluded from that count due to his post-election departure from the NXT.

The Court reasoned that the vacancy must be filled by a special count of the votes cast at the 2016 poll. It held that Ms Kakoschke-Moore's renunciation of British citizenship on 6 December 2017 did not cure her ineligibility at the time of nomination and election, as the constitutional requirement relates to the status at the time of being chosen. Furthermore, the Court determined that Mr Storer should not be excluded from the special count, as his cessation of membership in the NXT occurred after the election and did not disqualify him from being considered in the distribution of preferences.

Accordingly, the Court answered the reserved questions. It held that the vacancy should be filled by a special count of the votes. It also ruled that Ms Kakoschke-Moore's renunciation of citizenship did not make her capable of being chosen to fill the vacancy, and that Mr Storer should not be excluded from the special count.

Orders

Orders of the court

The questions reserved for the consideration of the Full Court under s 18 of the Judiciary Act 1903 (Cth) be answered as follows:

Question (1)

Should the vacancy in the representation of South Australia in the Senate for the place for which Skye Kakoschke-Moore was returned on 4 August 2016 be filled by a special count of the votes cast at the poll on 2 July 2016 or by some other, and if so what, method?

Answer

The vacancy in the representation of South Australia in the Senate for the place for which Skye Kakoschke-Moore was returned on 4 August 2016 should be filled by a special count of the votes cast at the poll on 2 July 2016.

Question (2)

Notwithstanding that as at 2 July 2016 and until on or about 6 December 2017 Skye Kakoschke-Moore was a British citizen, and, therefore, incapable of being chosen as a senator, does the fact that she renounced her British citizenship with effect from on or about 6 December 2017

render her capable of now being chosen to fill the vacancy by means of a special count of the votes cast on 2 July 2016?

Answer

The fact that Skye Kakoschke-Moore renounced her British citizenship with effect from 6 December 2017 does not render her capable of now being chosen to fill that vacancy.

Question (3)

If the vacancy is to be filled by a special count of the votes cast on 2 July 2016, should Timothy Storer be excluded from the special count by reason that, whereas at the time of the poll on 2 July 2016 he stood for election in a group of candidates that was accepted by the Australian Electoral Officer on behalf of the Nick Xenophon Team party, he ceased to be a member of that party on or by 6 November 2017?

Answer

Timothy Storer should not be excluded from the special count.

Background

Background to the litigation

The Court stated that its reasons for these answers would be given at a later time. What follows are those reasons.Factual background In the group nomination form lodged with the Australian Electoral Commission on behalf of NXT in relation to the general election, Ms Kakoschke‑Moore was listed as the third of four in the order of candidates, after Mr Nick Xenophon and Mr Stirling Griff and before Mr Storer. The order in which the candidates were listed determined the receipt of preferences for "above the line" votes because the order of voters' preference is taken to be the order in which the candidates are listed[1]. [1]Commonwealth Electoral Act 1918 (Cth), s 272(2). On 3 November 2017, the management committee of NXT resolved to expel Mr Storer from the party. On 6 November 2017, Mr Storer purported to resign from NXT. Thus, by at least the latter date, Mr Storer had ceased to be a member of NXT. On 22 November 2017, Ms Kakoschke‑Moore resigned her position as senator for the State of South Australia. She did so after receiving confirmation from the United Kingdom Home Office and legal advice that she was a British citizen. On 30 November 2017, she submitted a form seeking to renounce her British citizenship. On 6 December 2017, she received confirmation from the Home Office that her renunciation of British citizenship became effective on that date. On 7 December 2017, the Attorney‑General of the Commonwealth filed a summons seeking declarations that there is a vacancy by reason of s 44(i) of the Constitution in the representation of South Australia in the Senate for the place for which Ms Kakoschke‑Moore was returned, and that that vacancy should be filled by a special count of the ballot papers, with votes for Ms Kakoschke‑Moore and Mr Robert Day AO[2] to be counted to the candidate next in order of the voter's preference. The effect of such an order would be that, in the special count, the votes cast above the line for NXT that would have been counted in favour of Ms Kakoschke‑Moore would be counted in favour of Mr Storer instead.[2]See Re Day (No 2) (2017) 91 ALJR 518; 343 ALR 181; [2017] HCA 14. On 8 December 2017, Nettle J ordered that Ms Kakoschke‑Moore, Mr Storer and the Attorney‑General of the Commonwealth be allowed to be heard and be deemed to be parties.Ms Kakoschke‑Moore's submissions It is convenient now to summarise the submissions made on behalf of Ms Kakoschke‑Moore in relation to each of the questions reserved for this Court's consideration.Question (1) Ms Kakoschke‑Moore submitted that the vacancy in the representation of South Australia in the Senate for the place for which she was returned on 4 August 2016 should be filled, not by a special count, but by this Court declaring her to be elected pursuant to s 360(1)(vi) of the Act. If that submission were accepted, it would render answers to Questions (2) and (3) unnecessary. Section 360(1)(vi) of the Act provides that the Court of Disputed Returns may "declare any candidate duly elected who was not returned as elected". There is an obvious difficulty in the way of accepting that this provision is available in this case, in that Ms Kakoschke‑Moore was, in fact, returned as elected. That difficulty may be put to one side, however, because Ms Kakoschke‑Moore's submission faces a more fundamental difficulty.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

KIEFEL CJ, BELL, GAGELER, KEANE, NETTLE, GORDON AND EDELMAN JJ

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Ratio Decidendi

Legal Principle Established

Established by: KIEFEL CJ, BELL, GAGELER, KEANE, NETTLE, GORDON AND EDELMAN JJ

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