Re Kakoschke-Moore

[2018] HCATrans 36

[2018] HCATrans 036

IN THE HIGH COURT OF AUSTRALIA

SITTING AS THE COURT OF
DISPUTED RETURNS

Office of the Registry
  Canberra  No C30 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 SKYE KAKOSCHKE‑MOORE

NETTLE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 16 FEBRUARY 2018, AT 3.53 PM

Copyright in the High Court of Australia

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

HIS HONOUR:   Thank you, Ms Watson.  I take it there is no appearance for any other party.

MS WATSON:   No, your Honour.

HIS HONOUR:   Thank you. 

MS WATSON:   Your Honour, I move on the summons filed in this proceeding on 16 February 2018 and I read in support of that summons the affidavit of Mr Martyn Hagan sworn on 15 February 2018.

HIS HONOUR:   Yes, thank you.  Is the only order sought a declaration that Mr Storer is duly elected?

MS WATSON:   Yes, your Honour.

HIS HONOUR:   Thank you, Ms Watson.

MS WATSON:   If the Court pleases.

HIS HONOUR:   On 13 February 2018, it was ordered that the vacancy in the representation of South Australia in the Senate for the place for which Ms Skye Kakoschke‑Moore was returned on 4 August 2016 should be filled by a special count of the ballot papers in accordance with directions which were more fully specified in the order.

As is deposed to in the affidavit of Martyn Hagan, the Australian Electoral Officer for the State of South Australia, sworn on 15 February 2018, pursuant to the order of 13 February 2018, on 15 February 2018 a special count was conducted in accordance with the directions given in the order which establishes that the following 12 candidates, in order, would be elected upon application of the rules for counting set out in s 273 of the Commonwealth Electoral Act 1918 (Cth):

1.        Simon Birmingham

2.        Penny Wong

3.        Nick Xenophon

4.        Cory Bernardi

5.        Don Farrell

6.        Stirling Griff

7.        Anne Ruston

8.        Alex Gallacher

9.        David Fawcett

10.      Sarah Hanson‑Young

11.      Tim Storer

12.      Lucy Gichuhi

Of the above‑mentioned candidates, the first 11 were shown to have achieved the quota, namely, 81,629 votes. The twelfth candidate, Lucy Gichuhi, did not obtain the quota but obtained more votes than the only other continuing candidate at that point in the count, Anne McEwen. In those circumstances, s 273(17) of the Commonwealth Electoral Act operates with the result that Lucy Gichuhi is elected as the twelfth candidate.

Based on the contents of Mr Hagan’s affidavit, counsel for the Attorney‑General of the Commonwealth has this day moved on summons filed 16 February 2018 for a declaration that Timothy Storer is duly elected as a senator for the State of South Australia.

There being no dispute as to the contents or accuracy of Mr Hagan’s affidavit, or, any longer, any dispute that Timothy Storer is capable of being chosen or of sitting as a senator, I am satisfied that it is appropriate that Timothy Storer be declared duly elected as a senator for the State of South Australia.

The order of the Court is that Timothy Storer is duly elected as a senator for the State of South Australia.

Thank you, Ms Watson.  Adjourn sine die.

AT 3.57 PM THE MATTER WAS CONCLUDED