Re Kakoschke-Moore

[2018] HCATrans 2

[2018] HCATrans 002

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

FROM MELBOURNE BY VIDEO LINK TO SYDNEY

ON WEDNESDAY, 24 JANUARY 2018, AT 9.29 AM

Copyright in the High Court of Australia

MR S.P. DONAGHUE, QC, Solicitor‑General of the Commonwealth of Australia:   May it please the Court, I appear with my learned friend, MS Z.E. MAUD, for the Commonwealth Attorney‑General.  (instructed by Australian Government Solicitor)

MR A.L. TOKLEY, SC:   May it please the Court, I appear with my learned friend, MR A.K. FLECKNOE‑BROWN, for Ms Skye Kakoschke‑Moore.  (instructed by Nick Xenophon & Co Lawyers)

MR M.L. ABBOTT, QC:   May it please your Honour, I appear for Mr Storer, pursuant to leave granted by your Honour.  (instructed by Iles Selley Lawyers)

HIS HONOUR:   Mr Solicitor.

MR DONAGHUE:   Your Honour, as we understand it, there are two issues to be addressed by the Court this morning.  The first is the question as to whether this reference should be determined by a Full Court or by a single Justice of the Court, and the second is the issue raised by the letter from the Senior Registrar to the parties yesterday.

If I could briefly address first the first of those two matters.  Your Honour will have seen in the written submissions we filed yesterday evening, I hope ‑ has your Honour received that document?

HIS HONOUR:   I have, thank you, yes.

MR DONAGHUE:   Yes, thank you.  Our primary submission is that the matter should be dealt with by a single Justice, essentially because, as we understand the position raised by our friend’s submissions, they do not challenge at least five decisions of the Court identified in paragraph 6 of the outline which, in our submission, require the application to fail.

There is a fairly weakly advanced alternative challenge to one of those cases, Re Nash (No 2), but no challenge to any of the other judgments.  While it is true, as has been put in Ms Kakoschke‑Moore’s submissions in advance of the directions hearing, that there will need to be a debate about the scope of the holdings in a number of those prior Full Court decisions, in our submission, on the critical point which is whether or not a vote for an unqualified candidate can be counted in a special count, those authorities are unambiguously clear.  So our primary submission is that the case advanced is simply too weak to merit the attention of the Full Court.

That said, your Honour will have seen in paragraph 10 of our submissions that in the event that the Court considers the more appropriate course to be to refer the matter to a Full Court we do not oppose that course and, in that event, we submit that the Court should list the matter for hearing at the first available opportunity.

Our position in relation to whether a single Judge is appropriate would be different in the event that the ambit of the matters in dispute is expanded by reference to the matters raised in the Senior Registrar’s letter and if I could turn to that topic now.

HIS HONOUR:   Certainly.

MR DONAGHUE:   The letter, as your Honour knows, raises the question whether it is necessary or desirable in the event that the matter is referred to the Full Court for the Court to determine how the vacancy in the representation of South Australia in the Senate should be filled in the event that two conditions are established, the first condition being that a conventional special count is found by the Court to distort the true intent of the voters and the second condition being that Ms Kakoschke‑Moore is precluded from being included in the special count by reason of her British citizenship at the date of the poll.

Our submission is that the starting point to the question is it necessary or desirable for the Full Court to answer the question how the vacancy should be filled is that it is at least desirable that the Court answer that question if it is possible to do so, having regard to the fact that one of the questions that the Senate has referred to this Court specifically asks that very question, how should the vacancy be filled.

In the substantive submissions that the parties have filed, both parties have made submissions about how that question should be answered, and the substance of the point raised, as we understand it, in the letter from the Senior Registrar is an issue as to how that question should be answered in the event that none of the parties are wholly successful in the primary submissions that they advanced so that there is then a need to deal with some intermediate position.

In our submission, the question as to when, if ever, submissions need to be advanced addressing the particular contingency foreshadowed in the submission is one of some complexity because in the event that the Court reached that contingent position there would, it seems to us, be at least five possible issues that might be thrown up. 

First, is it possible to fashion a different form of special count from the usual special count that would overcome the problem identified by the Court? Second, would there be a necessity for there to be a fresh election for the entire Senate representation for South Australia, although in raising that I note that that is not a solution that is urged by any of the parties before the Court. Third, there would be a question whether the vacancy could be filled by the Senate itself as it considers appropriate in the exercise of its residual power under section 47 of the Constitution. Fourth, there might be a question as to whether the vacancy could simply be left unfilled; and, fifth, there may be an issue as to whether the Court can decline to answer a question that has been referred to it under section 376, although again it is not clear that that is raised.

As your Honour will understand, none of those five issues is currently raised or addressed in the submissions that have been filed by any of the parties and our submission is that it is desirable for the Court to decide the reference, if possible, on the matters on which the parties have joined issue, and it is possible if the Court were to accept either of the primary positions advanced by the parties that the reference could be completely resolved without any of those issues that I have just identified ever needing to be addressed.

HIS HONOUR:   That is to say the Full Court would decide that the vacancy should be filled by special count with Ms Kakoschke‑Moore excluded and Mr Abbott’s client included.

MR DONAGHUE:   Well, yes, that is our primary submission as to the answer that the Court should give to the question.

HIS HONOUR:   So then should the Full Court, if it is to go to the Full Court, be asked at this stage to say that the vacancy should be filled by special count?

MR DONAGHUE:   Well, your Honour, in my submission, yes, that is what the Attorney‑General is asking the Full Court to say, but if we place ourselves in the hypothetical situation raised by the letter then the answer that might be given to that is, well, the Full Court is not prepared to make that order because a special count of that kind would not reflect the true intent of the voters and the question would then be, well, what do we do with question (b).

But, in my submission, if the Court reaches that stage it is only at that point that it would be appropriate to descend into all of the other constitutional issues that I have just identified because they are issues that until the Court gets to that stage are hypothetical, they are quite complicated, they might require the participation of parties who are not presently parties to the reference, particularly if it were to be suggested that if you cannot have the special count one possible alternative is a full Senate election, then that possibility would clearly involve the interests of other parties.

So given the presently hypothetical nature of the issue and the complexities around it, in our submission, if one gets to the point raised in the letter then the Court should simply at that stage decline to answer question (b) and refer the matter for further directions so that new submissions can be advanced addressing those issues.

That would also have the advantage of enabling the parties to deal with the case in circumstances where it would know why the Court has found that a special count of the conventional kind would not give effect to the true intention of the voters because without the benefit of the Court’s reasoning on that issue it will be difficult to determine whether there is any other form of special count that might overcome the problem.

So for that reason, your Honour, our submission is that the appropriate way forward in the reference is simply to refer the matter for argument on the primary submissions – if the matter is to go to the Full Court, to refer the matter for argument on the submissions already filed by the parties and to deal with the contingent issues that might arise in the hypothetical identified in the letter if and when the Full Court reaches that conclusion.  If it please the Court.

HIS HONOUR:   Thank you.  Mr Abbott.

MR ABBOTT:   If your Honour pleases.  Insofar as the directions hearing this morning is concerned, we rely upon our written submissions in relation to the directions hearing.  I will not repeat what we have said in our written submissions.

HIS HONOUR:   No.

MR ABBOTT:   We also adopt the written and oral submissions of my learned friend, the Solicitor‑General.  May I then move to the issues raised by the Senior Registrar’s letter?

HIS HONOUR:   Yes.

MR ABBOTT:   Our starting point in relation to the letter is that if this Court found both holding (a) and (b) then there would be no NXT candidate on a special count and, presumably, if a special count was ordered a non‑NXT party person would presumably be elected via that special count.  That raises the issue then of the 50 other candidates whose nominations were accepted and who so far have not been represented before this Court and presumably who would have to at least be given notice of the issue that would then arise because their potential election would come into play.

But getting back to if that were the situation of the Court holding those two positions, we say there would be more of a distortion giving the votes to a stranger than if the votes were given to Mr Storer who was validly nominated and whose inclusion in a special count we say could never amount to distortion in a relevant sense.

I mean, this letter saying the form of the holding would be a conventional and unconditional special count would distort the true results of the poll, one needs to look at the likelihood of that possibility occurring even now because it seems to us that the likelihood of that occurring ‑ and this then feeds into what the learned Solicitor‑General said about whether we should even attempt to deal with this issue now – the likelihood of that occurring we say is nil or close to it with respect to the holding as formulated.

The provisions of the Electoral Act, particularly section 168, provide for group nomination – group and not party membership.  So when one looks at what is meant by distortion, presumably the issue about distortion is the fact that Mr Storer is no longer a member of the NXT party but he is still and was nominated and duly nominated as a member of the particular group formed by the NXT party.

So we say distortion, so‑called, in this case which presumably arises from and could only arise from the NXT party’s subsequent expulsion of Mr Storer is, in our submission, irrelevant because it did not occur prior to nomination and acceptance of his nomination in the group, and that refers back, of course, to sections 168 and 169 of the Electoral Act.

So the notion that events referable to a duly nominated candidate who stood for election as part of a group and who thereafter was expelled from the group could somehow change the validity of a special count we say just would not be held by this Court because the concept of distortion, as we read Ms Kakoschke‑Moore’s submissions, purports to compare in one sense what was at the time of nomination an acceptance of his nomination with what is now, namely, a candidate who is formerly a member of a party and now expelled from that party, and that requires, we say, the Court to make a political assessment of what the difference is in the situation now compared to the situation as it was.

That difference would require an assessment of how close to the NXT party’s policies is Mr Storer now, those policies at the time of his nomination, compared to the NXT’s policies even now compared to how they were at the time of nomination.  If the NXT party, for example, changed radically and expelled him and so their policies now were completely different from those at nomination, would that not be a distortion to say that Mr Storer whose policies are closer to the NXT party’s policies at the time of nomination be the preferred candidate and it is the NXT party and their candidate who distorts the situation.

I mean, to put it in context, if Senator Bernardi was in this case and arguing where I am, presumably he would be claiming that his values now are closer to the Liberal party’s values at the time he was elected than the Liberal party’s values now.

So, the test for distortion we say can only be based on the legal effect of what the voters did at the poll in relation to duly endorsed candidates and the assessment of what voters might do now misstates the test when applied to a special count because the test of how a special count should be conducted should be referable to what the voters did and whether what they did at the time would now be distorted by the special count and that really is nothing more than how did they vote for the group, not the party, of which Mr Storer was a member.

We say the only possible relevant fact therefore in relation to distortion is whether the special count will or will not result in a member of that group being elected to replace the obviously disqualified member of that group in the form of Ms Kakoschke‑Moore.

HIS HONOUR:   Yes.

MR ABBOTT:   Put simply, if Mr Storer was a member of that group, a subsequent special count, in our submission, could never be a distortion if it included him.  If the concept of distortion in this case is to be considered against something other than membership of the group at the time of nomination, that is the – in other words, the continuing or not continuing membership of a party, as I said, that really opens up the views as to whether the expelled member still holds the views he held at the time of the poll or whether the party still holds those views, and it has to be a political question far removed from the purview – I say this with respect – of this Court.

Now, if this Court was minded to make a finding in terms of paragraph (a), I repeat that it could only come to that conclusion, amongst other things perhaps, because Mr Storer had ceased to be a member of the NXT party via his expulsion because he was expelled.  That opens up the topic of the validity of his expulsion:  was it done for an improper purpose?  Was it done to exclude him from being considered by the South Australian Government to replace Senator Xenophon, because that happened as well?  Was it done to achieve the argument that is now being advanced, that he should be excluded because including him would distort the views of the true results of the poll?

As we have raised in the factual material which is in the application book, his expulsion on 3 November 2017 was not in accordance with the rules of the NXT Party, it constituted a denial of natural justice, it was in breach of section 40 of the Associations Incorporation Act (SA), and we say that that topic is not fit or should be opened up by this Court because on our submissions it is an irrelevant topic but, on Ms Kakoschke‑Moore’s arguments, it does become a relevant topic.

If this matter was to be sent up to the Full Court or remain before a single Judge, these questions would need to be teased out and included for submissions and, of course, we would need to file lengthy further submissions and there is an issue then as to whether we would need to – and seek to cross‑examine Ms Kakoschke‑Moore and possibly Ms Bonaras because she is the one that speaks of the expulsion in her affidavit and it may be a question then of putting on further evidence.

I suppose lastly we say that this Court as a Court of Disputed Returns has sufficient discretionary powers, even on the assumption that it made both holdings to still exercise its discretion in a way that would ensure that the 80,000‑plus votes cast for the NXT group nomination continued as votes for a member of that group and the only way those 80,000‑plus votes could continue to be used to assist a member of that group would be the inclusion of Mr Storer in the special count.  Those are our submissions.

HIS HONOUR:   Thank you, Mr Abbott.  Mr Tokley.

MR TOKLEY:   Thank you, your Honour.  Your Honour, we provided a two‑page short submission addressing both of the two matters that have been raised.  I do not if your Honour has had an opportunity ‑ ‑ ‑

HIS HONOUR:   Yes, I did have, thank you.

MR TOKLEY:   Thank you, your Honour.  Your Honour, for the reasons that my learned leader, Mr Jackson, mentioned on the last occasion we were before your Honour and for the reasons set out in that written submission – in particular in subparagraph 2(b), we do think and respectfully submit that this matter is appropriate to be heard by the Full Court.  Although it is said against us that the submission is faintly made – in fact, if one goes to the relevant paragraph of our written submissions, which is paragraph 74, it is explicitly submitted that if Re Nash (No 2) stands in our way we will be asking the Court to reopen the matter and to reconsider it and insofar as it is necessary to depart from what is said there so that the result that we seek may be achieved ‑ ‑ ‑

HIS HONOUR:   Yes.

MR TOKLEY:   So, your Honour, for those reasons and the reasons given in the written submission, and for some of the reasons also raised by my learned friend, the Solicitor‑General, in relation to the second of the two matters which is the questions that came in the Registrar’s letter – and in regard to that matter I am proceeding on the basis that those two findings were made by the Full Court and the question then becomes whether it is necessary or desirable for the Court to go on to consider question (b) which is how the vacancy should be filled.

My learned friend, Mr Abbott, addressed some submissions towards – or that that finding should be made.  I will not trouble to address on whether that finding should be made because that is not the basis of the request in the letter.  In our respectful submission whether the finding is to be made it would present some issues as to whether question 2(b) should be answered because it would mean that both members – or both persons who were nominated as members of the NXT group would now no longer be eligible to be declared a person chosen to fill a vacancy.

So that raises potentially other questions, including whether the matter should be, if the answer is it is undesirable to answer the question for the reasons given by the Court, it would then go back to the Senate for further consideration in light of the Court’s reasons.  I mean, your Honour has heard a number of submissions which are both for and against the proposition – for the proposition in the sense that they demonstrate how these issues need to be teased out and how they need to be addressed and some of the complicated questions that might arise.

It would be most unfortunate if the matter were to go before a single Justice and the single Justice were to hear full argument and then it would become apparent that the matter was better placed before a Full Court than a single Justice because of these sorts of issues.

HIS HONOUR:   Yes.

MR TOKLEY:   It is better, I think, to anticipate the possible problems than to try and dodge them, have the matter heard by a single Justice and only then to find that these issues have in fact arisen.  So in one sense the second aspect of today’s hearing, the question that was posed, strongly suggests that it would be better off going before the Full Court rather than a single Justice. 

The learned Solicitor‑General and Mr Abbott have pointed to the potential complications of other parties but it is inherent in the nature of the submissions that have so far been filed, as the question relevantly identifies, that both findings may be made.  It may be that Ms Skye Kakoschke‑Moore is precluded and it may be that Mr Storer is prevented, so to speak, because it would distort the voters’ true intentions.  The question then is well, what does the Court do in those circumstances?

So that has always been a possibility in this matter once the main submissions have been filed.  A lot of the submissions addressed by Mr Abbott seek to raise complications which have not hitherto been raised, for example, the question of expulsion and the resignation.  Our submissions proceed on the basis that it is a fact that Mr Storer is no longer a member of the NXT party, whether he was properly expelled or whether by his own resignation.  As far as I know it is not disputed that the fact is that he is no longer a member of the party.  It is upon the fact and not whether he was properly expelled or whether he properly resigned that the matter is to be addressed.

Insofar as Mr Abbott seeks to argue that so long as he was okay on the day of nomination, that overlooks the authorities in this Court which emphasise the fact that the election starts at a particular point in time and ends when a qualified candidate is chosen to fill the vacancy. Our basic argument has not been addressed by either of the two parties and it is the proposition that we put in paragraph 19 of our written submissions that there is nothing in section 44 of the Constitution that expressly renders a person who is an Australian citizen and only an Australian citizen ineligible to fill a vacancy created in the Senate. So, none of the submissions that have been filed to date address that fundamental proposition.

If I may just digress for one moment, that proposition is analogous, if I may say so, to the proposition that was accepted by this Court in Sykes v Cleary and that is that section – it would be wrong to interpret section 44 as disqualifying an Australian citizen that has taken all reasonable steps to divest themselves of dual citizenship.

In other words, once the disability has been removed or once the person has done all they can to remove the disability, they are no longer disqualified from being eligible to be chosen – that is the case of the application of section 44.  Our point is that in the context of a filling a vacancy, and the question is rhetorical, why would one seek to disqualify an Australian citizen, which is only now an Australian citizen, and it is the answer to that question that none of the authorities, with great respect, answer that question.

The way in which the submissions put against us are posed is, well, if one looks at what has happened to date and if one looks at the fact that this is a process, one comes to the inferential or the consequential answer that Ms Skye Kakoschke‑Moore is no longer eligible to be declared a person to fill the vacancy. Our response to that is no, the discourse – the area of discourse we are in is in the filling of vacancies and the area of discourse we are in is once the disability has been removed and that is why, in our submissions, we go back to the original drafts of the Constitution and we demonstrate that the words “unless or until” the disability has been removed were there ‑ obviously, they were subsequently removed in the March 1898 Convention ‑ but the effect, and I emphasise the word “effect” – the effect of Sykes v Cleary is to come to the same conclusion, once the disability is removed or has been addressed in a way that exhausts the power of an individual to address it then the constitutional imperative is engaged and then the person is eligible for election.

So, your Honour, that by way of overview, in my respectful submission, suggests that the matter is one that is worthy of going to the Full Court.  In response to the letter, in our respectful submission, if the Court got to the point where both findings were to be made then it would be appropriate for the courts to say that it is not appropriate for the Court to go further and answer question 2 in light of the fact that, amongst other things, the evidence before the Court does not allow the Court to decide whether another person should be chosen, there are not other parties before the Court who may wish to – who may be eligible and may wish to put submissions on the matter and so on.

HIS HONOUR:   But you agree with the Solicitor that we wait until and unless they are found to be the facts before the issues are raised or identified?

MR TOKLEY:   That would be the practical way to address it, your Honour, but certainly of the outcomes that could eventuate that that is – I do not say – I disagree with my learned friends and say it is unlikely.  I also disagree with my learned friend, Mr Donaghue, that our submissions are untenable.  Mr Jackson and I, with great respect, would not advance on an untenable argument and, in our respectful submission, the responding submissions so far have not really addressed – have not met head on the problem that we pose in this situation where you have a person who is now only an Australian citizen, eligible to fill a vacancy.  That is the question at the end of the day.

Your Honour, having reflected briefly further on your Honour’s question and what the learned Solicitor‑General submitted about waiting, it may be that the further submissions are needed because those submissions may inform the question whether the Court should decline to answer question 2 rather than awaiting – because the considerations that may arise may indicate that the relief that is being sought by the learned Solicitor‑General and, obviously, supported by Mr Abbott, is not the appropriate relief, in any event, so that it may be appropriate for further submissions to be addressed on that point because if we did wait and it occupied the time of the Full Court and all the submissions were being put

then the Court may raise questions during the course of the oral hearing which indicated that it would have been assisted by having those submissions early.  So I think, having given the matter some further thought on my feet, that it is probably appropriate to have additional submissions addressing the matter in advance of the main hearing in order to properly utilise the Court’s time.

HIS HONOUR:   Submissions as to what the result should be if it were found that both Ms Kakoschke‑Moore and Mr Abbott’s client were excluded?

MR TOKLEY:   Yes, your Honour, because if, for example, the parties were ad idem on what the result should be, that could probably be of assistance to the Court.

HIS HONOUR:   It does not sound very likely that they will be in view of what Mr Abbott has submitted.

MR TOKLEY:   Well, he is proceeding on the basis ‑ as I understood the latter part of his submissions, he is proceeding on the basis that finding would not be made, proceeding on the basis that it could be made, yes.

HIS HONOUR:   Yes, I see.

MR TOKLEY:   So that is the difference between us, and I think that if it is appropriate in order to assist the Court that the parties should proceed on that basis because, after all, those are the issues that have been ventilated in the written submissions and contrary to the learned Solicitor‑General’s submission, those issues are live now. 

HIS HONOUR:   All right.  Thank you.

MR TOKLEY:   Thank you, your Honour.

HIS HONOUR:   Mr Solicitor, do you want to say anything more?

MR DONAGHUE:   Yes, please, your Honour, just a few matters.  First, as to the asserted connection between a Full Court hearing on the existing issues and on the issues raised in the letter, in the event that a single Justice were to determine the issues raised now and to reach the findings identified in the letter both (a) and (b), it would then be possible in the same way as a further round of submissions would be possible in the Full Court for a single Justice at that stage to say in light of the findings reached there are now additional constitutional issues raised and to make directions that would bring those matters before the Full Court.  So, there is not any necessary nexus between – once one bifurcates, if one gets to that stage and separates the issue, it would similarly be possible to deal with the second set of issues in the event that they arise at the Full Court level.  That is the first point.

The second point, your Honour, is that some of the submissions that have been made proceed upon the footing that if the Court reached the conclusion identified in paragraph (a) of the letter, the consequence would be that Mr Storer was disqualified.  In my submission, that is far from clear.  The hypothesis is that the special count would distort the true results of the poll by reason that Mr Storer had ceased to be a member of the NXT party but there is no suggestion that he would not be a qualified candidate for the election.  There is no basis upon which it could be said that he was disqualified under section 44 or on any other basis.  The issue would be, instead, an issue as to how one dealt with the fact that at the polling people voted for a candidate who was a member of the party at the time of the polling but not a member of the party at the time of the declaration of election and how that contingency should be dealt with.

That throws up some potentially difficult questions but they are not questions that can be answered on the assumption that Mr Storer is not on the ballot.  One could not, in our submission, have a special count conducted on the basis that Mr Storer was excluded because one might well ask, well, on what basis does a qualified candidate included on the ballot paper be excluded by the Court if there is no legal impediment to him having stood for election.  So, there might be some issues there but, in our submission, it is certainly not as simple as just saying any special count would exclude all of the NXT candidates.

Next, your Honour, it is important, in our submission, to note that no party is presently submitting that the Court should not answer question (b).  We submit that the Court should answer question (b) by saying there should be a special count from which Ms Kakoschke‑Moore is excluded, that would be the same order that was made in the Canavan matters, in Nash and in multiple other references over the last few months.  So, we are submitting that the question should be answered in a conventional way.

Our friends likewise submit that the question ‑ this is Ms Kakoschke‑Moore ‑ that the question should be answered again by a special count, the only difference being that Ms Kakoschke‑Moore should be included.  So, in the event that the Court accepted either of the sets of submissions currently advanced, there would be a special count and the question is what kind of special count.

Now, the proposal developed on his feet by my learned friend, Mr Tokley, that one needs to address the alternative submissions, is then a set of submissions answered on the quite different basis that the parties would be addressing a case where presumably Ms Kakoschke‑Moore would be submitting that the Court should not answer the question at all.

Now, if that is a position that Ms Kakoschke‑Moore seeks to advance, it is presumably a position that she would advance only if she is unsuccessful in her contention that there should be a special count that returns her and in that sense we submit that your Honour should be satisfied that the issue is hypothetical.  At the moment everyone is saying there should be a special count.  If we get to a stage where the Court says, in effect, there cannot be a special count of the ordinary kind because that would distort the true intent of the voters, then we are then in a quite different situation to the situation that now confronts the Court and it is not until we reach that position, in our submission, that there is likely to be a real utility in entering into the range of potentially complex issues that might throw up.

Finally, your Honour, as to the proposition advanced by Mr Tokley that there has not really been a joinder of issue on their key point and he said, well, the issue is that there is a vacancy, we are in the area of discourse of vacancies and the question is can an Australian citizen who is only an Australian citizen fill the vacancy. The difficulty with that, in our submission, is that when one drills down a little to say, well, why is there a vacancy in the Senate, the answer is that the Senate was dissolved in May 2016, all of the positions in the Senate became vacant at that time and those positions had to be filled by the process of election for which the Constitution and the Electoral Act provide. That process of election is incomplete with respect to one of the positions in the Senate for South Australia and the question is how does one complete that electoral process in order to fill the vacancy that arises from the dissolution?

The process, the authorities of the Court tell us, is one that commences no later than the date of nomination and extends until the position is filled and Ms Kakoschke‑Moore’s submission is that because she is not disqualified now at the very end of that process she can fill the vacancy created by the dissolution.

Now, that might be right but it is only right if all of the cases that say if you are disqualified at any point during the electoral process you cannot take the seat are wrong and there are many decisions to that effect.  So, in our submission, it is not right to say we have not joined issue.  We have joined issue at the very outset in terms of the character of the vacancy that is being filled.  So, that is why we submit that there is so much authority in the way of the case.  It is not that this is some novel issue about filling a vacancy at a time when a person is no longer disqualified.  The process of filling the vacancy is the same as the electoral process and is, therefore, subject to all of the existing authorities. 

Now, that ultimately is a matter that bears on the final resolution of the case but for present purposes we submit that there is a square joinder of issue on the matters that the parties had prior to the letter from the Court yesterday identified as the issues that needed to be resolved to answer the question and, in our submission, it remains the case that those submissions might result in final answers to the questions.  If they do not, it would not be unknown for this Court, having heard argument and reached a particular set of conclusions to say, well, there are other issues that need to be resolved before this matter can be fully determined. 

One needs to look no further to find an example of that than the recent Re Nash cases.  So, in the reference in relation to Re Nash which was one of the set of seven references heard with Canavan the Court was asked to answer question (b).  It answered question (b) that there should be a special count but it was not possible to get to the conclusion of that reference until a different set of legal issues were agitated about the next candidate down, Ms Hughes, and so that all needed to play out through further submissions and argument before the reference could come to an end.

What we are proposing here is that the same process be adopted such that either the hearing before the Full Court on the existing submission will bring the reference finally to an end or it will crystallise the further issues that need to be determined in order to bring the reference finally to an end.  If the Court pleases.

HIS HONOUR:   Thank you.

MR ABBOTT:   Could I make two points?

HIS HONOUR:   Yes, Mr Abbott.

MR ABBOTT:   Like my learned friend, the Solicitor‑General, we say we have joint issue on section 44 and paragraph 19.  On one interpretation of their argument, they appear to be saying that the world at large could now apply to be included in a special count when they say in paragraph 19 the person is now an Australian citizen.  But, I suppose, really what they are saying is that not only is she now an Australian citizen but her disqualification somehow renders her undisqualified as at the relevant time.

Now, we understood from the decision of this Court, the Full Bench of this Court, in Re Canavan, that the relevant time is the date of nomination because in that case at paragraph 3 this Court said:

Accordingly, the temporal focus for the purposes of s 44(i) is upon the date of nomination as the date on and after which s 44(i) applies until the completion of the electoral process.

Now, we did not bother to quote that paragraph in answer to section – paragraph 19 because we say it is obvious.  In circumstances where Ms Kakoschke‑Moore conceded in a letter to the President of the Senate that she was incapable of being chosen and ineligible to be chosen and, we say, putting what was said by the Full Bench of this honourable Court in paragraph 3 in Re Canavan with what Ms Kakoschke‑Moore conceded that there is no further issue.  However, we contend that we have joint issue.

The second point I want to make is that, as my learned friend the Solicitor‑General said, perhaps not in these words, we do not cease to be an eligible candidate even if the Court makes the holding in paragraph (a) because there is still – and my learned friend Mr Tokley’s submissions confuse eligibility with actual election ‑ there is still a discretion in section 360 of the Electoral Act for this Court to order and make an order that Mr Storer be elected.  The special count is, in every sense, merely evidential and is not necessarily the end of the matter and I have already made submissions on the discretion that the Court has when I made my first submissions.  If the Court pleases.

HIS HONOUR:   Ladies and gentlemen, I should say that having regard to the materials which have been tendered and the submissions that have been made, my inclination is now to make a declaration that Ms Kakoschke‑Moore ‑ that a vacancy exists because for the place for which Ms Kakoschke‑Moore was returned – I apologise for my voice, it has virtually left me – I do not see any reason to delay the making of that declaration and in order to avoid further uncertainty I think I should make it.

MR DONAGHUE:   Your Honour, can I say one thing in that respect?  We certainly do not oppose your Honour making that declaration but, in our submission, it might be desirable for your Honour to declare that there is a vacancy – I am trying to align the order with the order that was made in the recent matters that remove the reference to the place for which Ms Kakoschke‑Moore was returned.  Your Honour might recall there was an issue around that language.

HIS HONOUR:   I do.  We do not have that problem in this case, though, do we?  It was the terms of the question from the Senate that the Court advise whether a vacancy exists.

MR DONAGHUE:   Sorry, your Honour, yes, the declaration can be made in those terms, the issue arises at the point of the order filling the vacancy, so I have pre‑empted the issue, your Honour, I apologise.

HIS HONOUR:   Thank you.  I must say I vacillate a little as to whether I should decide this matter myself or refer it to the Full Court but I am disposed to think that because the issue of Ms Kakoschke‑Moore’s eligibility to fill the vacancy will turn on whether the Court is minded to depart from reasoning in previous cases, in particular, in Nash (No 2), it is ultimately necessary, or at least desirable, that the thing be decided by a Full Court.

As to the remaining issue of whether Mr Storer should be excluded from any special count or dealt with otherwise than might be expected if there were a special count, I confess that as at present advised I find it very difficult to think that he should be, although, of course, that is only a preliminary tentative view.  But given that the issue is novel and may arise again perhaps in the near future, I think it desirable that that too be determined by the Full Court and inasmuch as the issue of whether there is a vacancy is to go to the Full Court it is desirable that all issues be dealt with together. 

As to the further issues which were identified in the Senior Registrar’s letter of yesterday, in one sense it would be desirable if the Court could hear argument on all possible issues but I accept the contentions advanced by the Solicitor and supported by Mr Abbott that until and unless it is decided that Ms Kakoschke‑Moore is not eligible and that for some reason or other Mr Abbott’s client should not be counted or should be discounted in some fashion in the determination of who should fill the vacancy the issues are hypothetical and are better left over until and unless they arise.

Accordingly, apart from making the declaration to which I have referred and subject to any further submissions of counsel which they may wish to make in opposition, the course I am disposed to adopt is to refer three questions to the Full Court in a form which will now be circulated to counsel both here in Melbourne and also, I trust it can be arranged, to Mr Tokley in New South Wales.

MR TOKLEY:   Thank you, your Honour, yes I have received the questions.  Thank you, your Honour.

HIS HONOUR:   Thank you.  As you can see, lady and gentlemen, they go not beyond what had been identified as the issues on which the parties are joined but I am inclined to think that a degree of precision is desirable rather than allowing the matter to go up to the Full Court in more general

terms, which would be the case if there were not something of this kind ordered. 

MR TOKLEY:   Your Honour, we have had the opportunity to look through the questions.  We are happy with them.

HIS HONOUR:   Thank you, Mr Tokley.  Mr Solicitor.

MR DONAGHUE:   Your Honour, we are likewise content with the questions.  It occurs to us it might be desirable that orders – questions 2 and 3 be reversed in order in the sense that it will only be if Ms Kakoschke‑Moore cannot be chosen in the special count that one would reach the issue as to Mr Storer, but ultimately we are in your Honour’s hands.

HIS HONOUR:   Yes, I take the point.  Thank you.  Mr Abbott.

MR ABBOTT:   Well, for the sake of consistency, your Honour, we would object to, in respect of question 2, going to the Full Court.  We say that question is in essence no question because - no real question and certainly has no real prospects of success in being answered in favour of Ms Kakoschke‑Moore because of the, in short, some of the matters I have advanced orally and because of what we have said in our submissions in this matter.  If this question is to go, the wording, we would say, is less than complete because he stood for election in the group.

HIS HONOUR:   Yes.

MR ABBOTT:   As I said, the Electoral Act does not refer to “party” at all.

HIS HONOUR:   So how would you seek to change it?

MR ABBOTT:   I would have to look at section 168.  He stood for election in a group of candidates which was accepted by the Electoral Commissioner on behalf of the Nick Xenophon Team party and then on or 6 November he ceased to be a member.

HIS HONOUR:   Of which he ceased to be a member.

MR ABBOTT:   If only to align the question with the wording of section 168.

HIS HONOUR:   Yes.  The other thing, Mr Abbott, is it appears to me that the Solicitor is correct in saying that questions 2 and 3 should be reversed in order.

MR ABBOTT:   We agree with that.

HIS HONOUR:   Thank you.

MR DONAGHUE:   Your Honour, might I raise one other matter?

HIS HONOUR:   Yes, Mr Solicitor.

MR DONAGHUE:   The matter concerns the closing words of question 1 which ask “or by some other, and if so what, method”.  In my submission, that raises some of the bifurcation issues that I addressed your Honour on earlier in the sense that if the Court were to find that that vacancy should not be filled by a special count then there would be a set of questions as to what is the alternative and how viable is that and does that affect the rights of any other parties, et cetera. 

In my submission, it would be sufficient if your Honour ended question 1 after the date “2016” such that the Court will either say yes, there should be a special count and then we progress to questions 2 and 3 about who gets included in it, or the Court says no which would be the trigger for there then being a need for further submissions from the parties as to how the vacancy should be filled.

HIS HONOUR:   What is the concern, that if you leave the words in there it will be said that you should have been prepared to argue it?

MR DONAGHUE:   And that we should have addressed that range of issues - that is the concern.

HIS HONOUR:   Yes, I follow.

MR ABBOTT:   We agree.

HIS HONOUR:   Thank you, Mr Abbott.  I take it you do too, Mr Tokley?

MR TOKLEY:   Your Honour, just taking the easiest of the changes - first of all, no problems with reversing the order of paragraphs 3 and 2.

HIS HONOUR:   Yes.

MR TOKLEY:   No problem with the changes suggested by Mr Abbott in relation to the former question 2.  I understood the intent of the question (b) to be consistent with section 168 but I did not think it necessary to change it, but I have no problems with the suggested change of wording. 

As to the change proposed by the learned Solicitor‑General, I am wondering whether that would not restrict the Full Court but also whether it would be consistent with the question referred from the Senate because it asks that if the answer to the question is yes, by what means and in what manner that vacancy should be filled.  So it gives the Court a very broad scope in answering the question and I would rather not restrict the Full Court because if during the course of argument matters which are not foreseen today and have not been ventilated today arise I would not want the Court to find that its time was being taken up unnecessarily.

HIS HONOUR:   I follow.

MR TOKLEY:   So I would rather it would be kept in the wording that your Honour chose.

HIS HONOUR:   Very well, thank you.

MR TOKLEY:   Thank you, your Honour.

HIS HONOUR:   Mr Solicitor, I am disposed to leave those words in there, largely for the reasons just expounded by Mr Tokley, but it will be plain from the transcript that you are not expected to prepare for the issues identified in the Registrar’s letter, that such issues are hypothetical and that they cannot be prepared for until and unless there are findings of the kind made in that letter made by the Court.

MR DONAGHUE:   If the Court pleases.

MR ABBOTT:   Your Honour, may I add one more thing?

HIS HONOUR:   Yes, Mr Abbott.

MR ABBOTT:   I am sorry, your Honour, but what is now question 3, formerly question 2, would raise the issue that I spoke of in my submissions to you, that is, the validity of the expulsion and the manner in which the expulsion occurred, and they are matters that are not fully covered by the factual matters in the application book.

HIS HONOUR:   Is it really an issue because whether or not it was valid you ultimately resigned, did you not?

MR ABBOTT:   Only after being expelled.

HIS HONOUR:   But nonetheless you did.

MR ABBOTT:   Yes.

HIS HONOUR:   Well, you are no longer a member of the party.

MR ABBOTT:   No longer a member of the party, but the manner in which we became no longer a member of the party may have potential relevance as to whether or not we should now be excluded.

HIS HONOUR:   If the dismissal was ineffective you ceased to be a member when you resigned.  If the dismissal was effective you ceased to be a member upon the dismissal.  Either way you have ceased to be a member.

MR ABBOTT:   True.  Well, I merely raise it as a possibility, your Honour, only in the sense that it may then – the issue of – the question of exclusion may then raise for consideration whether Mr Storer’s views and policies now are aligned with the NXT party’s views and policies at the time of his nomination in the group and whether or not the NXT party’s policies now have departed from the position in which the NXT party stood at the time of his nomination in the group.

HIS HONOUR:   Mr Abbott, you have put your submissions as to what is now question 3 upon the basis that Mr Storer was validly – stood validly for election and the fact that he may have changed his party allegiances since then is nihil ad rem.

MR ABBOTT:   That is so.

HIS HONOUR:   Well, that is the issue, is it not?

MR ABBOTT:   Yes, it is.  That is the main issue, yes.  These other issues may be called into account by the submissions on behalf of Ms Kakoschke‑Moore.  That is all ‑ ‑ ‑

HIS HONOUR:   Well, you know what those submissions are.  They have been put in writing.  I know what they are.  You have responded to them in writing and orally.

MR ABBOTT:   Very well.

HIS HONOUR:   Mr Solicitor, can I trouble you again, just to be sure that the material on which the declaration of a vacancy is to be based is the material that was forwarded to the Court by the President of the Senate, the affidavit of Ms Kakoschke‑Moore of 10 January 2018 and the exhibits to it which of course include the expert advice.

MR DONAGHUE:   Indeed, your Honour.  That is the material that we think your Honour needs.

HIS HONOUR:   Thank you.

On 28 November 2017, the President of the Senate, pursuant to s 377 of the Commonwealth Electoral Act 1918 (Cth), transmitted to the Court in its jurisdiction as the Court of Disputed Returns under Pt XXII of the Act the following statement of questions upon which the determination of the Court is desired:

(a)whether, by reason of s 44(i) of the Constitution, there is a vacancy in the representation of South Australia in the Senate for the place for which Skye Kakoschke‑Moore was returned;

(b)if the answer to Question (a) is ‘yes’, by what means and in what manner that vacancy should be filled;

(c)what directions and other orders, if any, should the Court make in order to hear and finally dispose of this reference; and

(d)what, if any, orders should be made as to the costs of these proceedings.

In addition to an extract of the Journals of the Senate containing the Senate’s resolution as to the referred questions, the following documents relating to the questions were also transmitted to the Court: 

(i)a copy of the writ issued by the Governor of South Australia, dated 16 May 2016, for the election of 12 senators for the State of South Australia with an endorsement by the Acting Australian Electoral Officer of the State of South Australia, Mr Paul Hawes, certifying and returning the persons duly elected, tabled in the Senate on 30 August 2016;

(ii)a copy of the letter of resignation from Ms Kakoschke‑Moore, dated 22 November 2017, resigning her place as a senator for South Australia, together with a copy of the letter from the President of the Senate to the Governor of South Australia, dated 24 November 2017, both tabled in the Senate on 27 November 2017; and

(iii)extracts from the Senate Debates on 27 November 2017.

As well as the documents so referred there is before the Court an affidavit of Ms Kakoschke‑Moore affirmed 10 January 2018 and the exhibits thereto, including:

(i)a copy of the birth certificate of Ms Kakoschke‑Moore’s mother, Sharon Patricia Carroll (nee Crosse);

(ii)a copy of an email from Ms Ingrid Southworth of the British High Commission to Ms Kakoschke‑Moore dated 10 November 2017;

(iii)a copy of an email from Ms Kakoschke‑Moore to Mr Ian Page of the United Kingdom Home Office dated 14 November 2017;

(iv)a copy of an email from Mr Page to Ms Kakoschke‑Moore dated 15 November 2017 containing advice that, because Ms Kakoschke‑Moore’s mother was born in the former British colony of Singapore to a father born in the United Kingdom and was thus, under s 11(1) of the British Nationality Act 1981, a British citizen otherwise than by descent, Ms Kakoschke‑Moore was a British citizen under s 2(1)(a) of that Act;

(v)a copy of the memorandum of advice of Mr Adrian Berry dated 21 November 2017 recording Mr Berry’s opinion that because Ms Kakoschke‑Moore’s mother was a British citizen otherwise than by descent, Ms Kakoschke‑Moore was, by reason of s 2(1)(a) of the British Nationality Act, born a British citizen by descent;

(vi)a copy of Ms Kakoschke‑Moore’s letter of resignation from the Senate dated 22 November 2017;

(vii)a copy of a declaration of renunciation of British citizenship by Ms Kakoschke‑Moore dated 30 November 2017; and

(viii)a copy of an email from Mr Page to Ms Kakoschke‑Moore dated 6 December 2017 attaching a copy of Ms Kakoschke‑Moore’s certificate of renunciation of British citizenship marked as registered.

On the basis of the documents referred to the Court, which I shall receive as evidence in the proceedings, and the affidavit of Ms Kakoschke‑Moore affirmed 10 January 2018 and the exhibits thereto, which are uncontradicted, I am satisfied that Ms Kakoschke‑Moore was at the time of nomination for the general election for the Commonwealth Parliament held on 2 July 2016, and at all relevant times until on or about 6 December 2017, a British citizen and therefore a citizen of a foreign power within the meaning of s 44(i) of the Constitution, and, consequently, incapable of being chosen or of sitting as a senator for the State of South Australia.

Accordingly, I have determined to answer Question (a): Yes, by reason of s 44(i) of the Constitution there is a vacancy in the representation of South Australia in the Senate for the place for which Skye Kakoschke‑Moore was returned.

There being, however, a dispute as to how the remaining questions should be answered and, in particular, if the vacancy is to be filled by a special count, as to whether (a) Mr Timothy Storer should be excluded from the special count by reason that, on or about 6 November 2017, he ceased to be a member of the Nick Xenophon Team party; and (b) whether, 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 senator, she is now capable of being chosen by a special count to fill the vacancy because she renounced her British citizenship with effect from 6 December 2017, I have determined to reserve the following questions for the consideration of the Full Court pursuant to s 18 of the Judiciary Act 1903 (Cth):

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?

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?

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 which 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?

Accordingly, it is ordered as follows:

1.Question (a) referred to the Court of Disputed Returns by the President of the Senate in his letter dated 28 November 2017 be answered as follows. 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 Skye Kakoschke‑Moore was returned.

2.The following questions are reserved for the consideration of the Full Court pursuant to s 18 of the Judiciary Act 1903 (Cth):

(i)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?

(ii)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?

(iii)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 which 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?

3.The questions referred pursuant to Order 2 be determined on the following evidence, there being no agreed statement of facts:

(i)the affidavits of Timothy John Courtney affirmed 7 December 2017 and 15 December 2017;

(ii)the affidavit of Skye Kakoschke‑Moore affirmed 10 January 2018;

(iii)the affidavit of Constadina Bonaros sworn 22 December 2017;

(iv)the affidavit of Timothy Raphael Storer sworn 22 December 2017.

4.The Attorney‑General file and serve a joint book of authorities in accordance with Practice Direction No 1 of 2017 by 2 February 2018.

5.The questions referred pursuant to Order 2 be listed for hearing before the Full Court at 10.15 am on Tuesday, 13 February 2018.

Any need to reserve the costs for today? 

MR DONAGHUE:   No, your Honour.

HIS HONOUR:   Thank you.  Is anything further sought, gentlemen?

MR TOKLEY:   Sorry, your Honour, if I may please ‑ I am sorry, your Honour, because of – your Honour made some orders on 8 December in relation to Ms Kakoschke‑Moore filing and serving annotated reply submissions to the submissions that we have received.  We received those submissions late on 22 January and unfortunately Mr Jackson is presently indisposed but we were wondering if your Honour would be so good as to extend the time within which we would file and serve any annotated reply submissions to Tuesday, 30 January so that we may have that – a few extra days to be able to do that?

HIS HONOUR:   Mr Tokley, remind me please of the date presently ordered that you file it?

MR TOKLEY:   It is order number 9 - it is 25 January, so by tomorrow we were supposed to have filed our replies.

HIS HONOUR:   You want it extended until when?

MR TOKLEY:   Tuesday 30th, so just five days from tomorrow.

HIS HONOUR:   Any objections?

MR DONAGHUE:   No, your Honour.

HIS HONOUR:   It is further ordered that the time in which Ms Kakoschke‑Moore is to file and serve any replies to the submissions filed on behalf of – just Mr Storer or all of them?

MR TOKLEY:   All of them, your Honour, yes but we think we can probably do it in the one document and it is unlikely to exceed the five‑page limit.

HIS HONOUR:   Replies to the submissions filed by the other parties be extended until 3.00 pm on Tuesday, 30 January 2018.

MR TOKLEY:   Thank you, your Honour.

HIS HONOUR:   I am grateful to counsel for their assistance, thank you.

MR DONAGHUE:   If the Court pleases.

HIS HONOUR:   I will now adjourn.

AT 10.45 AM THE MATTER WAS ADJOURNED