Re Kakoschke-Moore

The High Court of Australia, sitting as the Court of Disputed Returns, considered questions referred to it concerning Ms Skye Kakoschke-Moore. The primary parties involved were Ms Kakoschke-Moore, represented by Mr Tokley SC, and the Commonwealth Attorney-General, represented by the Solicitor-General, Mr Donaghue QC. Mr Storer, represented by Mr Abbott QC, also participated in the proceedings. The dispute centred on whether Ms Kakoschke-Moore was eligible to fill a vacancy in the Senate for South Australia, and related questions regarding the process of filling such a vacancy.

The Court was required to determine two principal issues. The first was whether the reference should be heard by a Full Court or a single Justice. The second, arising from a letter by the Senior Registrar, concerned the necessity and desirability of the Court determining how a Senate vacancy should be filled, contingent upon two conditions: first, that a conventional special count of votes would distort the true intent of the voters, and second, that Ms Kakoschke-Moore was disqualified from inclusion in such a count due to her British citizenship at the time of the poll.

The Solicitor-General argued that the matter could be determined by a single Justice, as the case against Ms Kakoschke-Moore's eligibility was weak and did not challenge established Full Court decisions. However, he conceded that if the scope of the dispute expanded to include the issues raised in the Senior Registrar's letter, a Full Court might be more appropriate. The Solicitor-General submitted that the Court should ideally resolve the reference based on the issues already joined by the parties. If the contingent issues arose, he proposed that the Court should decline to answer the question of how the vacancy should be filled at that stage and refer the matter for further directions, allowing for new submissions on the complex constitutional questions that might emerge. Mr Abbott QC, for Mr Storer, argued that his client's inclusion in a special count would not constitute a distortion, and that the validity of Mr Storer's expulsion from his party was a relevant, but complex, issue. Mr Tokley SC, for Ms Kakoschke-Moore, contended that the matter warranted a Full Court hearing due to the complexity of the issues, particularly the contingent questions raised by the Registrar's letter, and argued that the Court should consider how the vacancy should be filled if both Ms Kakoschke-Moore and Mr Storer were found ineligible.