Re Kakoschke-Moore

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.