Re Nash

[2017] HCATrans 234

[2017] HCATrans 234

IN THE HIGH COURT OF AUSTRALIA

SITTING AS THE COURT OF
DISPUTED RETURNS

Office of the Registry
  Canberra  No C17 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 THE HON MS FIONA NASH

KIEFEL CJ
BELL J
GAGELER J
KEANE J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 15 NOVEMBER 2017, AT 10.17 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 friends, MR M.P. COSTELLO and MS J.D. WATSON, for the Commonwealth Attorney‑General.  (instructed by Australian Government Solicitor)

MR A.R. MOSES, SC:   If it pleases the Court, I appear with my learned friends, MR S.J.P. DUGGAN and MR P.G. SHARP, for Ms Hughes.  (instructed by Harpur Phillips)

MR G.R. KENNETT, SC:   May it please the Court, I appear as amicus curiae with my learned friend, MR B.K. LIM.  (instructed by Australian Government Solicitor)

KIEFEL CJ:   Yes, Mr Solicitor.

MR DONAGHUE:   Your Honours, in our submission, two issues need to be addressed in answering the question that has been reserved for the consideration of the Full Court, pursuant to section 18 of the Judiciary Act.  The first issue addresses the circumstances in which this Court should consider the qualifications of a person who is identified on a special count before declaring that person duly elected to fill a vacancy in the Senate.

Your Honours will have seen that the Commonwealth does not dispute that, in the particular circumstances of this case, it is appropriate for the Court to determine that issue.  But, as we understand it, this is the first time that this Court will have examined the qualifications of a candidate identified on a special count before declaring them duly elected and particularly in circumstances where this issue has obvious potential to arise again.  We submit that it is appropriate to identify the principles that should govern the circumstances in which the Court enters into that question.

KIEFEL CJ:   Yes, thank you, Mr Solicitor.

MR DONAGHUE: The second issue is the temporal operation of section 44, the endpoint of the process of choice to which that section refers. Your Honours will have seen, again in our written submissions, we do not take – or we accept that part‑time membership of the Administrative Appeals Tribunal is an office of profit under the Crown and I do not propose to address that issue in oral submissions.

So, turning first to the first of the questions I identified and when issues of qualification should be identified, there is no dispute that Ms Hughes was identified on the special count that was ordered by this Court following the determination of the questions that had been referred to the Full Court in the Re Nash reference.  I will not take your Honours to it but you will see that agreed at 28 on page 89 of the court book. 

In consequence of Ms Hughes having been identified in that way, the Commonwealth filed a summons seeking an order that Ms Hughes was duly elected for the place for which Ms Nash was returned.  The question referred to the Court is whether or not that declaration should be made.

The amicus submits that it is “necessary or at least desirable” – so they put it both ways – that the qualifications of Ms Hughes be resolved before declaring her duly elected, at least, they say, to the extent of dealing with any issue that arises on the facts properly before it.  So the submission asserts at its highest that it is necessary to address the question and that it is necessary to do so at least to the extent that the issue is raised, but they do not limit themselves in that way so they leave open the possibility that there is some wider inquiry required. 

The reason that they put the issue that way is because it is suggested that there is at least a doubt about whether the question of qualification could be resolved anywhere else or at any subsequent point in time if the Court has made an order that Ms Hughes be duly elected.

The purpose of the first part of the oral submissions I am about to make is to contend that it is not necessary, in order to make an order of the kind sought that a person be duly elected, to examine questions of qualification at all, and to establish for the future that, if the Court chooses to do so, it is doing so in the context where the question of qualification is one issue that informs the exercise of discretion by the Court as to whether or not the Court should make an order of that kind or a different order under section 360, potentially including an order to conduct a further special count to identify a different candidate if the Court concludes that the first candidate identified on the special count is disqualified.

So that the way it comes in, in any case where the reference from the Senate is wide enough to allow this to occur ‑ and I will come to that ‑ but in any case, where the reference is wide enough, the way the issue comes in is as a matter that goes to the discretion of the Court rather than as something that must be addressed as a matter of law.

KIEFEL CJ:   What kind of a discretion is that?

MR DONAGHUE:   It is a discretion, your Honour, that arises by reason - if your Honours have the Electoral Act, the order that the Commonwealth seeks in this case is an order under section 360(1)(vi).  So, amongst the powers of this Court, its powers include:

To declare any candidate duly elected who was not returned as elected -

Now, for reasons I will come to, if the Court makes a declaration of that kind we say it says nothing about the qualifications one way or the other of the candidate and so does not preclude that issue from arising. But, if the Court were to form the view that it is quite obvious that the candidate identified by the special count could not take their seat because they are disqualified by section 44(i), the Court might, in deciding whether it is appropriate to make such an order, conclude that it is not appropriate because that would simply prolong the uncertainty as to the membership of the Senate in circumstances where the person evidently could not take their seat.

Now, section 360(2), your Honour, makes it clear that all of those powers in the preceding subsection are to be exercised:

on such grounds as the Court in its discretion thinks just and sufficient.

So, in effect, we accept that it would be open to the Court, having regard to the width of the discretion there identified, not to declare duly elected an unqualified candidate.

But it is not, in our submission, necessary for the Court to enter into that issue for two reasons: first, because, as I just foreshadowed, an order of due election does not enter into the question of qualifications at all; and, second, because a declaration in those terms would not preclude any examination of qualification questions in a subsequent reference under section 376. That is those two points that I seek to develop.

Before I do so, your Honours, I should just note that the statute itself deals with the consequence of the Court making an order that a candidate be duly elected and you see that in section 374 of the Act in roman paragraph (ii):

Effect shall be given to any decision of the Court as follows:

. . . 

(ii)If any person not returned is declared to have been duly elected, the person may take his or her seat accordingly -

So, the effect – if your Honours made the order that we seek – would be that Ms Hughes would be entitled to take a seat automatically by reason of section 374(ii).  But that, we submit, is all the order would do.

The making of an order in these terms has its origins, as we understand it, in the judgment of this Court in In re Wood (1988) 167 CLR 145 - if I could ask your Honours to turn to that. This is the first case where a special count was ordered to fill a vacancy in the Senate, that vacancy having been identified following a reference of questions from the Senate to the Court.

If your Honours turn to page 169 of the report – this is still in the reasons of the entire Court.  At the end of the report there is a separate report of the judgment of Chief Justice Mason that followed the judgment of the Full Court and I will come to that in a moment.  But in the judgment of the whole Court in resolving the questions on 169, you see that the Court answered the questions whether there was a vacancy and it then, in the middle of the page, raised the possibility that the Court might, in effect, be functus:

Having answered the questions referred by resolution of the Senate, it may be that this Court has no further function to perform –

But then said:

Another view is that the Court should give directions to the Australian Electoral Officer to undertake a recount –

That is in the special count.  And then towards the end of that paragraph, the last four or four lines of that paragraph, their Honours said:

It might be thought that, upon the completion of the recount, the Court should exercise the power to declare “any candidate duly elected who was not returned as elected” (s. 360(1)(vi)), whereupon the person in question would “take his seat accordingly”: s. 374(ii).

So the Full Court, having raised the possibility that it might be thought that that is how things should be done, the Commonwealth then moved for orders of that kind and that came on before Chief Justice Mason who, ultimately, did make orders of that very kind for the conduct of the recount and ultimately declared duly elected the person selected by the recount.

Since then, that same procedure has been followed by this Court on many occasions and we collect them in footnotes 6 to 8 of our submissions, in paragraph 23.  Following an electoral petition in Sue v Hill, Chief Justice Gleeson made orders that the candidate identified on the recount was duly elected.  Your Honour the Chief Justice and Justice Keane made orders of that kind in Re Culleton earlier this year.  Justices Nettle and Gordon made orders of that kind in Re Day earlier this year.  And last Friday, your Honour Justice Gageler made orders of that kind in Re Waters, Re Roberts and Re Ludlam, so there is a regular pattern of orders of that kind.

In none of those cases has the Court regarded it as necessary to consider, by way of a sort of qualification audit, whether or not the candidate declared duly elected was or was not qualified under section 44 of the Constitution. And it would in those circumstances, we submit, be rather remarkable if the effect of that order was to immunise the persons so declared from the operation of those provisions of the Constitution. Yet that is the effect of the submission that the amicus is putting to your Honours when it is said, “Well, if that order is made, then the issue cannot subsequently be examined”.

Of particular note, if your Honours still have Wood, is what happened in the procedure before Chief Justice Mason.  If your Honours turn to the last page of the report at 176 you will see that, after the special count had been conducted, the matter came back before the Chief Justice on an application by the then Solicitor‑General, on behalf of the Attorney‑General, for an order that the candidate identified, a Ms Irina Dunn, be declared duly elected.

An attempt was made on behalf of Ms Nile to contend that Ms Dunn should not be declared elected because of doubts about her nationality and doubts about whether the party of which she was a member had sufficient members to be eligible for registration and the Chief Justice concluded that in the circumstances of the particular reference that had been made in those cases, though the question of Ms Dunn’s qualification fell outside of the terms of the reference that had been made, so his Honour found he had no jurisdiction to look at that question.

That might perhaps be said to distinguish that case from this case but, notwithstanding that jurisdictional issue, your Honours will see in the last paragraph on that page that his Honour ordered:

that Irina Dunn be declared duly elected as a senator for the State of New South Wales ‑

Now, if it be the case that the effect of an order in that term is to preclude subsequent examination of the qualifications of the person, then that would have had the rather remarkable consequence that the doubts about the nationality of Ms Dunn could not have been subsequently examined, it must therefore be the case at a minimum that the effect of the order be confined by reference to the jurisdictional limits on what the Chief Justice was doing at the time.

But it is difficult, in our submission, to see that the effect of an order that a candidate be duly elected operating in rem against the world should vary depending on the terms of the questions referred about a different candidate.

Certainly, we submit that the practice of the Court, consistently with what the Chief Justice did and what has been done in subsequent cases where the reference was wider, where the reference was as wide as it is now and so it includes question (c) ‑ what other orders should be made – the practice of the Court has not been to enter into issues of that kind.

The issue is illustrated by the recent example of the orders your Honour Justice Gageler made on Friday.  Your Honour will recall that I mentioned that there was media reporting to the effect the Mr Bartlett was employed by the ANU at the time he nominated and therefore he held an office of profit under the Crown. 

No one appeared at the hearing to raise that question or to dispute the proposition that the order might properly be made.  Consistently with the long practice of the Court, your Honour made that issue but, in our submission, that says nothing about the capacity of the Senate in future, if it is minded to do so, to examine that question, your Honour not having looked at it and not having determined it.

BELL J: Accepting that to be so, in circumstances where there is material before the Court, as here, given that the terms of section 374(ii) that the effect to be given to a declaration that a person is duly elected is that the person may take his or her seat and given the terms of section 45 of the Constitution, there would seem to be every good reason for exercising what you describe as the discretion in favour of the determination of eligibility.

MR DONAGHUE:   That is why we accept, your Honours, that it is appropriate in this case but the question ultimately – all I am attempting to deal with at the moment is the proposition that it is a necessary precondition to making a declaration of due election that one resolves these issues.  If we clear that away then there might still be good reasons to do so in particular cases but that would leave open the possibility that if, for example, the person who seeks to raise the issue does not have a sufficient interest to bring themselves within 378 of the Act so as to be treated as a party on the reference the Court would not need to enter into the question. 

So it allows the Court properly to control the circumstances in which that further inquiry is needed in circumstances where - while the Court in this case has moved with astonishing speed to get the matter from the point being raised last Friday to a final determination in this case, that will not always be possible and if it is not possible, the resolution of the further qualification question will delay the filling of the place in the Senate.  So, there is, in our submission, good reason for this Court to keep a tight rein on the circumstances in which it needs to enter into a suggested qualification issue for the candidate on the special count.

GAGELER J:   So what is the bottom line of this particular submission?  Is it that a declaration made under section 361(vi) is a declaration in rem but which does not create a res judicata? 

MR DONAGHUE:   Does not create a res judicata as to the qualifications of the candidate.  The reasons for that – I am about to come to that, your Honour - is that there is authority – in fact, I will take your Honours to it immediately.  The case is Dunbier v Mallam [1971] 2 NSWLR 169 which considers what the Court is doing when it makes a declaration of due election.

The effect of the order, as identified by Justice Hardie, your Honours will see on page 172.  So, at the top of 172, three or four lines down, you can see the statutory power that his Honour was concerned with which was in relevantly the same terms as 361(vi) “duly elected” – “declare a candidate duly elected” and then if you go down to paragraph C, in the second sentence:

When asked to declare a candidate duly elected who was not returned as elected, the task of the court is to do what the returning officer should, under the statute, have done, and to correct any errors which that officer may have made, where the votes recorded are still traceable and identifiable.  The court’s function in such a case involves decisions on the validity or invalidity of disputed votes, and, if necessary, a consequent adjustment of the returning officer’s calculations and figures; the ultimate exercise is a mathematical one.

So, what the Court is doing is looking at the returning officer’s function and the returning officer’s function is not to look at the qualifications of the candidate.  This Court made that very clear in In re Wood, if I could ask your Honours to go back to it, this time to page 164.  In re Wood 167 CLR at 164 in the passage under the quote in the middle of the page, their Honours refer to the fact that the election is not complete when the unqualified candidate is returned and then say:

That is not to say that, putting to one side “a mere abuse of the right of nomination or an obvious unreality” . . . the Electoral Officer who makes a return has authority himself to determine the qualifications of a candidate (who declares and maintains that he is duly qualified . . . or to refuse to return the name of an otherwise successful candidate whose qualifications are in issue . . . But the performance by the Electoral Officer of his ministerial functions in these respects does not determine the validity of the return or the efficacy of the election of an unqualified person to a vacant place in the Senate.

That is exactly the same position when the Court makes an order of due election.  The Court is doing what the returning officer should have done which is not to say anything about the qualifications of the relevant officer.  So there is no res judicata on that question.

GAGELER J:   So the declaration under section 361(vi) is a declaration of the same quality relevantly as that made administratively under section 283(1)(a).

MR DONAGHUE:   Precisely, your Honour.  That is our submission, leaving therefore entirely at large the question of the qualifications of the person to sit or otherwise. 

KEANE J:   Is that so notwithstanding that the occasion for the order is the reference from the Senate?

MR DONAGHUE:   Yes, because the reference from the Senate is about a different person.  Here, the reference from the Senate is about Senator Nash.  Your Honours ruled that Senator Nash is not qualified, so at that point your Honours are undoubtedly focusing on qualification.  But then, when one moves to the question of who takes the place, the situation is as if Ms Nash had never appeared on the ballot paper.  If that had been the case, on the recount the Electoral Officer exercising the ministerial function would have declared her duly elected without looking at her qualifications.  Ms Hughes is in the same position, we submit, unless, in the exercise of the discretion, the Court chooses to bring in that qualification in order to decide whether it is appropriate in all of the circumstances to return the candidate identified by the special count.

If your Honours, in the exercise of discretion, did choose to rule on that issue, then we accept that, the issue having been raised and squarely determined by the Court, there would be a res judicata on that point.  The point would have been litigated and decided by the Court as a step along the way to deciding whether or not to make an order.  Indeed, if your Honours decided hypothetically that Ms Hughes was not qualified then you would never make the order that Ms Hughes was duly elected; you would make a different order, in our submission, for a further special count of the ballot papers, excluding both Ms Nash and Ms Hughes.

So the determination of the qualification question would have altered the order that the Court made in disposing of the reference.  But the effect of the order is exactly as your Honour Justice Gageler put to me, and that is why, in our submission, it is clear that if the Court has not entered into the issue of qualifications there is no preclusion on the question of qualification.

The amicus contends against us that the submission that the Attorney now advances is inconsistent with what was advanced on behalf of the Attorney in Day before Justices Nettle and Gordon.  I will not take your Honours to the transcript of that but our submission is that a fair reading of the transcript reveals that the question in issue there was whether an electoral petition would be available.  Our submission then and now is that an electoral petition is not available to challenge a candidate declared duly elected by the Court, but we said nothing on that hearing about references and there is, in our submission, no inconsistency as to the position that was taken.

The amicus also in writing has relied on an old case, Waygood v James, from 1869, which your Honours should have.  As we understand it, in support of the proposition that the effect of 368 of the Electoral Act is that if the Court declares the candidate duly elected then there is preclusion from examining qualification issues even if they have not been litigated in the course of the Court resolving that question.  Section 368 of the Electoral Act, of course, provides:

All decisions of the Court shall be final and conclusive and without appeal, and shall not be questioned in any way.

In our submission, Waygood v James is not authority for that proposition.  Indeed, it rather strongly points against that proposition.  If I could make that good briefly; your Honours, I hope, have also been given, in addition to Waygood v James, the 1868 Electoral Act that was being considered by the Court in that case, the Parliamentary Elections Act 1868.

This case was decided the following year, so it is a very early authority on the operation of this Act and it will assist your Honours with the report if I just note three sections quickly; section 5 identified the people who could bring an electoral petition as including:

Some Person who voted or who had a Right to vote –

. . . 

Some Person claiming to have had a Right to be returned or elected ‑

. . . 

a Candidate.

So, petitions could be brought by any of those people.  If your Honours then turn to page 5 of the print section 11(13), you will see it there provided that:

At the Conclusion of the Trial the Judge who tried the Petition shall determine whether the Member whose Return or Election is complained of, or any and what other Person, was duly returned or elected ‑

So, the court at the conclusion of the trial had to determine whether the existing member or someone else was duly returned or elected and was then required to certify that to the Speaker of the House and upon the certificate being given, the determination was final to intents and purposes.  So, that is a precursor of the current 368.

Then particularly relevantly in this case, section 53 on page 17, procedure for what was called “Recrimination”:

On the Trial of a Petition under this Act complaining of an undue Return and claiming the Seat for some Person, the Respondent –

that is the person who had been returned:

may give Evidence to prove that the Election of such Person was undue in the same Manner as if he had presented a Petition ‑

The language is not particularly clear but the effect is, if someone brings a petition against the candidate declared elected, that candidate can say, not only is your allegation misplaced, but you, the candidate who is bringing the petition, were yourself guilty of electoral misconduct such that you are not entitled to the place either. 

That is how section 53 worked and that is relevant because what happened in Waygood was that there was an election between three candidates:  Mr James was not returned elected and his behalf an electoral petition was then brought to the court claiming that Mr James should have the place of a Mr Cox who had been returned.  Counsel for Mr Cox sought to contend that not only that he had done nothing wrong but that Mr James had been guilty of bribery and treating such that Mr James also should not be entitled to the place and he sought to make that allegation against Mr James good by cross‑examining witnesses and at the close of the trial made submissions to the effect that he had established on evidence that James was guilty of bribery and treating.

So, the court had expressly heard evidence on and ruled on the question of whether or not Mr James was guilty of misconduct.  After the court ruled on those questions, finding that Mr James was not guilty of misconduct, an attempt was made to bring and indeed that Mr Cox had been, Mr James was ordered to take the place and someone tried by a second electoral petition to challenge James running exactly the same argument, that James had been guilty of the same bribery and treating that had been the subject of examination in the first proceeding and the court unsurprisingly held that that issue was res judicata and had been determined.

But if your Honours look at ‑ and I will not tarry long on this case ‑ but if your Honours look, for example, at page 366 at about point 4, the Chief Justice says:

In the present case, of all others this matter seems to me to have become res judicata.  Not only was the issue raised by the petition, but the question so raised was gone into, and it matters not that affirmative evidence was not offered on behalf of the sitting member, and that he contented himself with the cross‑examination of the witnesses who were offered by the petitioners, for in that way evidence was obtained and was submitted to the consideration of the judge, and the learned counsel who appeared for the sitting member argued the case as to the disqualification . . . The issue having been raised, the evidence gone into, and the arguments of counsel heard, the judge has decided, and I am at a loss to distinguish this case from one where witnesses have been examined –

Reason to the same effect was given by Justice Montague Smith at the bottom of page 369.  Both of their Honours, having held that it was a res judicata issue in the ordinary way, then referred to the 368 equivalent ‑ 11(13) – only to confirm that conclusion.  So, at the top of 367 in the Chief Justice’s judgment, three lines down – from the top of the page you can see the reference to section 11(13) and the declaration that the decision “shall be final to all intents and purposes”.  And the Chief Justice says:

If it is to be final to all intents and purposes, can it be said to be final unless it is to conclude the parties in a matter which was in issue, and on which the decision of the judge has been pronounced?

So, in our submission, there is no basis in that authority to suggest that a declaration that someone is duly elected is preclusive with respect to an issue not litigated.  The case is – tends strongly the other way.

The effect of all of that, your Honours, is that, in our submission, there is no reason why the ordinary procedure under 376 of the Electoral Act for the Senate to refer a question to this Court is not available in a case where the Court has declared a person duly elected.  Therefore, no reason for the Court to be concerned that if it makes the order the attorneys sought, that will somehow prevent those qualification issues from being raised.

We do agree with the amicus that it is not possible – if the Court makes an order of that kind – to challenge it by electoral petition.  The reason for that is found in section 355 of the Act, paragraph (e), which sets a time limit referrable to the date of “the return of the writ for the election”.  That date, of course, is long past.  It was in August 2016.  And, if the Court makes a declaration that someone is elected, they can take their seat under 374 but that has no effect on the return.  It does not – it is not an amendment of the return, there is not a new return and so there is no reason for time to start running again by reference to that provision. 

The amicus says, as we understand it, that the mere fact that you cannot bring an electoral petition is itself a reason why the Court must examine disqualification questions before it makes a declaration that someone is duly elected.  In our submission, that is not right for two reasons.  The first is that Parliament has, evidently, turned its mind to the circumstances in which the petition procedure should be available.  If your Honours go back to 353, you will see that it is available not just in the case of a dispute in relation to an ordinary election and return – sub (1) – but also extended by Parliament in sub (2) to allow a petition to challenge a casual vacancy.

So, Parliament has considered, beyond the standard election, other cases where a petition should be available and has expressly dealt with the case of the casual vacancy. There is no extension of this procedure to deal with the case where a place is filled by the Court of the Disputed Returns and that, we submit, engages the operation of section 47 of the Constitution which leaves it exclusively within the jurisdiction of the relevant House to determine any dispute – including a dispute as to qualification of a member except to the extent that Parliament has otherwise provided.

Now, in our submission, Parliament has otherwise provided in the specific terms of the electoral petition provisions.  It has otherwise provided in 376, but it has not provided in more extensive terms and it is therefore, in our submission, not right to reason from the limits that Parliament has set on the petition procedure that there is somehow a duty on the Court to fashion a de facto electoral petition procedure whereby any person can raise a qualification question before a vacant place can be filled.

In circumstances where 376 is available, so there is a means to rule on qualification questions, we submit your Honours should not enter into the other issues raised by the amicus about other methods by which the question could be raised.  I am referring there specifically to two questions.  One is:  can you determine a qualification issue in a common informer action?  As your Honours would be aware, that is the central issue in a matter that is listed before the Full Court for argument in Alley v Gillespie on 12 December.  And there is quite some level of complexity associated with that and we submit it would be appropriate for your Honours to steer clear of that issue in this case, if it is possible to do so.

And, equally, as a secondary issue in Alley v Gillespie there is a question as to the residual power of a House of Parliament to determine a qualification question which, again, we submit your Honours do not need to enter into in this case, if you are satisfied that the 376 procedure is available.

For all of those reasons we submit there is no necessity to enter into the issue.  I have already addressed your Honours, I think, sufficiently on the availability of the discretion.  The bottom line of this submission, your Honours, is that we accept that in circumstances where a person with a sufficient interest to engage 378 of the Act puts on material that raises a serious question as to the qualification of the candidate who has been returned by the special count.  All else being equal, it would be a proper exercise of discretion to go into that question.

But if someone who does not have such an interest seeks to enter into the question or the Court looks at the question and the issue appears weak, if for whatever reason it will not be possible for the Court to determine the question in a timely fashion, if a party has had ample opportunity to put on material raising the question and they have not taken that opportunity, which was the situation confronting the Court in Day, when there was actually a party who wanted to raise a qualification question as to the candidate selected, and the Court declined to allow an extension of time to put on further material on that issue, all of those are matters the Court can properly take into account in the exercise of its discretion.

Because if, for example, a qualification issue of an apparently weak kind, were to be raised in circumstances where the Court was not going to be in a position to rule on it for a matter of months, perhaps, it may be that the Court would say, well, we should fill the vacancy in the Senate and if there is a problem then the Senate can refer that question back to the Court of Disputed Returns.  But, ultimately, it is a discretionary judgment.  In this case, we accept that it is appropriate to look at the question, but we do contend that there is a wider interest in this Court resolving the applicable principles, given the likely need for them to be applied again in the near future.

Can I turn then to the substance where the issue is quite narrow. The relevant facts that bear on the operation of section 44 in relation to Ms Hughes are set out in an agreed statement of facts in the court book at page 86. Your Honours will see from paragraph 2 that the writ for the Senate election for New South Wales was issued on 16 May.

Ms Hughes, in paragraph 3, signed a nomination form on 2 June and a multiparty group nomination was registered the day after, on 3 June.  Then at paragraphs 9 to 10, polling day was 2 July.  Polls opened at 8.00 am and closed at 6.00 pm.  So for people already in the queue, “voters in the queue” reflects the terms of section 220 of the Electoral Act.  So that was the close of the polls.

Then on 4 August, the result of the election was declared. The names of the elected candidates were certified and on the next day, 5 August, the writ was returned to the Governor of New South Wales. The effect of the return of the writ – and your Honours do not have a date as to the fact when this occurred, but under section 7 of the Constitution, the writ having been returned to the Governor of the State, the Govenor of the State certifies the names of the senators chosen to the Governor‑General. So that is the final step in the process.

After the return of the writ on 5 August, a long time after, and your Honours see this from paragraph 13, an instrument of appointment dated 15 June appointed Ms Hughes as a part‑time member of the Administrative Appeals Tribunal with effect from 1 July.  That instrument of appointment was signed by the Governor‑General.  There is a copy of it elsewhere in the book:  it is annexure B to the Harpur affidavit, but I will not take your Honours to it.

On 15 June the Governor‑General appointed Ms Hughes as an AAT member with effect from 1 July and, having been appointed to that position, Ms Hughes was entitled to remuneration determined in accordance with the Remuneration Tribunal Act.  On the basis of those facts, we have accepted that Ms Hughes held an office of profit under the Crown but, of course, she did not hold that position until - at the earliest, 15 June and more likely 1 July. 

Ms Hughes resigned that position some 45 minutes after this Court delivered judgment on the references on 27 October.  So Ms Nash’s place was identified as vacant in answer to the questions on 27 October at about 2.15 pm and Ms Hughes resigned her position at about 3.00 pm that afternoon.

There is no dispute between any of the parties that when section 44 of the Constitution refers to a person being incapable of being chosen, those words refer to a process of being chosen, as this Court established in Sykes and reaffirmed in the recent references judgment which, for convenience, I will call Re Canavan.  There is also no dispute that that period of choice commences at the point of nomination, that having been the central holding in Sykes v Cleary at page 100 and again confirmed in Re Canavan. 

The dispute between the Attorney and Ms Hughes on the one hand and the amicus on the other concerns when the process of choice ends and the amicus contends that the process is one that – and I quote them at paragraph 5 of their submissions:

extends continuously from the date of nomination until the electoral process concludes by the election of persons not incapable of being chosen. 

The amicus elsewhere at paragraph 47 accepts that.  The consequence of that submission is that the process of choice may continue throughout the entire life of the Parliament.  Our submission is that your Honours should reject that construction of the period of choice for two reasons.  First, it is contrary to authority, in our submission, the Court having held in Sykes v Cleary that the process of choice ends with the close of the polls; and, second, because the submission incorrectly equates the electoral process as a whole with the period of choice under section 44 when the period of choice under section 44 is but a subset of the electoral process.

GAGELER J:   Will you deal with Vardon v O’Loghlin as considered in In re Wood?

MR DONAGHUE:   Yes, your Honour, in my submission those – yes, I will.  Can I start with Sykes (1992) 176 CLR 78. The relevant part of the judgment dealing with this temporal question is found in the plurality judgment of Chief Justice Mason and Justices Toohey and McHugh but Justice Brennan at 108, Justice Dawson at 130 and Justice Gaudron at 132 all agreed with this aspect of the plurality judgment. So, six members of the Court associated themselves with the passages that I am about to take your Honours to.

The relevant part is page 99 through to 100 under the heading “At what time does the disqualification operate”.  Your Honours will see about point 2 down the page – point 2 or point 3, it is recorded that:

the first respondent and the Attorney‑General submit that a member is “chosen” when the member is declared to be elected, that is, when the poll is declared -

which, in the case of a House of Representatives election, occurs under section 284 of the Act; in the case of a Senate election it occurs under 283 of the Act. So, focusing on the Senate at 283, the steps are declaration of the result, certification by the Electoral Officer, certification of the names of the candidates elected which are then attached to the writ and then the return of the writ – declaration certification return.

So the Attorney identified there the relevant point of choice as declaration being a step before the return of the writ.  The Court rejected that submission in the middle of the page and it there identified, three lines down in the middle paragraph, a question whether the words refer to the act of choice or the process of being chosen.  So that was a question that the Court had to resolve.  We know it settled on the process.  But in the next part of the paragraph it deals with the possibility that the focus was on the act of choice.  It said:

Even on the narrower of the alternatives, namely, that the words refer to the act of choice, the outcome would be unfavourable to the first respondent.  The people exercise their choice by voting, so that it is the polling day rather than the day on which the poll is declared that marks the time when a candidate is chosen by the people. 

Then their Honours note some variations with postal votes and emergency votes and say:

But these characteristics of the polling do not justify the conclusion that the declaration of the poll, which is the formal announcement of the result of the poll, amounts to, or even coincides with, the choosing by the electors of the member for the relevant electoral division.  The declaration of the poll is the announcement of the choice made; it is not the making of the choice.

In our submission, their Honours were quite clear:  the making of the choice has occurred by the close of the polls.  The subsequent steps, including the declaration, followed by certification and followed by the return, are announcement and then implementation, in effect – the choice that has already been made by the people by the time of the close of the polls.  Their Honours support that analysis by reference, in footnote (44), to:

s. 24 of the Constitution, read in conjunction with ss. 7, 30 and 41.

It is evident from a review of those provisions that the Constitution uses the words “choosing” and “voting” in close correlation throughout those provisions. The constitutional concept of “choosing” a member is a constitutional concept tied to the act of voting. We submit that that is clearly enough the point that their Honours were making when one has regard to those provisions.

KIEFEL CJ:   How does that square with the earlier expression by their Honours of the process of being chosen rather than the act of choice?

MR DONAGHUE:   Because, your Honour, there their Honours are focusing on, in effect - if it were an act that were relevant, when would that act have occurred?  Their Honours say by the end of voting.  They then accept a process analysis which reaches back to an earlier point in time.  So the process is a process that commences on nomination but, we submit, consistently with their Honours’ reasoning, must end at the act of choice, because the process of choosing cannot logically, in our submission, extend beyond the time when the choice has already happened. 

What their Honours seem to have been concerned to do in the passage I have just read is to say the process of choice is over with the close of polls.  The declaration, which is what the Attorney was focusing on, is not about choice at all.  It is about announcing the choice that has previously been made.

So we accept that there is a process.  We accept that it reaches back to the date of nomination.  But we submit that their Honours clearly, in our submission, thought the process was over on the close of polls.  To put that in statutory terms, if your Honours go to 220 of the Electoral Act, which deals with the polling, the Act has prescribed the way that polling – including the time at which polling shall be conducted:

(b)The poll shall open at 8 o’clock in the morning, and shall not close until all electors present in the polling booth at 6 o’clock in the afternoon, and desiring to vote, have voted;

(c)The doors of the polling booth shall be closed at 6 o’clock in the afternoon and no person shall be admitted after that hour to the polling booth for the purpose of voting -

So, in our submission, the close of the polls to which their Honours are referring in that passage on page 99 is to be equated with 6 o’clock on the polling day – subject to anyone who is already present at the polling booth being allowed to cast their vote.

GAGELER J:   Can postal votes come in after that day?

MR DONAGHUE:   I think they can come in after that day as long as they have been posted before that day.  That seems to be the qualification that their Honours are dealing with in the passage immediately following footnote (45).  So their Honours refer to postal votes and absentee votes and other matters of that kind.  But if the vote has been cast, whether by postal vote or absentee vote prior to the close of the polls, in our submission the choice has been made. 

What remains to be done is to ascertain the outcome of that choice by counting the votes that have been made before the polls close and by counting postal votes or absentee votes.  But the counting of those votes – so as to come up to ascertain the result of the election – is not the act of choice.  It is the determination of – or the identification of the choice that has been made.  That is how we understand their Honours to have analysed the position there. 

KEANE J:   Is it not the determination of the legally effective choice - in the sense that ascertaining whether a legally effective choice has been made given that, as we know, someone is disqualified from – unqualified to be chosen.

MR DONAGHUE:   Your Honours, our submission is that the choice is made when the people enter the ballot box, cast their votes and leave when everyone has participated in that.  There is then a quite complicated process of scrutiny and counting and declaration of the result that follows which we accept is part of the electoral process but which is all directed to working out what the people did when they cast their votes collectively. 

That process may be a process that needs to – or that continues for some time after the votes have been counted.  So, here, the declaration of the poll for New South Wales did not occur until 4 August so that is over a month after the people have made their choice by voting on 2 July.

If that process is erroneous for some reason so that the votes are counted incorrectly, then that might result in an electoral petition which might result in the votes needing to be recounted.  But there is no change in the choice that has occurred; there is just a recognition that the choice was not accurately identified by the first count and therefore in need to conduct another count or, in the case of an election of an unqualified candidate, a need to go back and look, as occurs on the special count. 

The special count is not a new process of choice.  It is a process that, as it occurred last week, goes back and looks at the choice that was made on 2 July, with eyes open to the fact that certain people who were thought eligible were not in fact eligible.

KIEFEL CJ:   Quite.

MR DONAGHUE:   So one then says, “Well, who was chosen then?”

KIEFEL CJ:   The circumstance that their Honours were concerned with in Sykes v Cleary, as appears from page 100, was where a candidate who was disqualified at the time of the counting of the votes could resign office to ensure eligibility before the declaration was made.  The circumstance here, as you have just alluded to, is rather different.  It is where the initial vote is invalid.  We are in different territory, are we not?

MR DONAGHUE:   Well, your Honour, we are in different territory but, in my submission, the initial vote was not invalid.  It was just ineffective to the extent that it referred to Fiona Nash.  But the balance of the vote was ‑ ‑ ‑

KIEFEL CJ:   Sorry, the election was void?

MR DONAGHUE:   In this case or ‑ ‑ ‑

KIEFEL CJ:   The election of Ms Nash was ineffective.

MR DONAGHUE:   Was ineffective to fill the place.  But the choice that the voter made, if we assume a simple case where the voter votes for Ms Nash No 1, and then for six or seven other candidates in order, is readily identified as a choice that the person made for Ms Nash first, but then for the other nominated candidates in that order.  On a special count, one just looks back and says, on 2 July what is the true legal intent of that voter, now that we know that Ms Nash was not qualified and we ascertain it.

KIEFEL CJ:   Or is the question:  does the process continue?  That, I think, is the matter addressed in the two cases to which Justice Gageler referred you - Vardon v O’Loghlin and Inre Wood.

MR DONAGHUE: What is put against us is that the electoral process does continue and is then put or it is part of that proposition that the concept of the electoral process is coterminous with the period of choice identified in section 44(i). Our submission is that the process of choice identified in Sykes, as in here and in 44 of the Act, is a process of choice that commences on nomination and runs to the close of the polls. 

That is obviously not coterminous with any ordinary understanding of the meaning of the electoral process because the electoral process must start earlier.  It starts with the return of the writs, which necessarily precedes the date of nomination, so one has a temporal difference there and if the electoral process is longer at the other end as well because, after the poll, there are all the steps necessary to count, declare, return the writs, et cetera.

So that, in our submission, the electoral process extends from Part XIII of the Act and the writs through to Part XIX of the Act and the return of the writs.  But that expression, the electoral process expression, is not a constitutional term, it is not a statutory term, it is not a term of art.  It is just a convenient way of referring to that part of the Commonwealth Electoral Act and there is no reason why the process to which Sykes refers where their Honours evidently, in our submission, had in mind a quite discrete period of time should be equated with that wider purpose.

Now, the question your Honour Justice Gageler asks me about Vardon as endorsed in Wood is dealing with a different concept again in that – and it is at 164 of Wood is the part that your Honour is referring to where there is a quote from Vardon in the middle and then the statement upon which our friends rely, the Senate election is not complete ‑ the concept of whether or not the election is complete is identified in those authorities by reference to whether it has achieved its purpose of filling a particular place in the House or Senate and those authorities, as we understand them, support the proposition that it can properly be said that an election is not complete when a place remains vacant.  It has not been effective to fill the relevant place.

But, in our submission, it is not correct to regard those cases as authority for the proposition that the electoral process must continue continuously from the issuing of the writs through to the effect of filling of the place.  That is not correct because the Act identifies the possibility that places might be filled by proceedings in the Court of Disputed Returns possibly happening a very long time after the election has concluded and the writs have been returned and which involve a procedure of a kind that is quite different from the procedure that the Act identifies as the electoral – or that reasonably be described, in our submission, as the electoral process. 

So that, when your Honours used that expression recently in Re Culleton – and I might show your Honours how you dealt with that ‑ Re Culleton (2017) 91 ALJR 311, referring back to pages in Sykes that I have already taken your Honours to and, in our submission, there is no indication in this paragraph, paragraph [13], that your Honours were intending to overrule or alter the law as discussed in Sykes but there is a reference to section 44 referring to:

the process of being chosen:  a process which operates from the date of nominations, as that is the date on which the electoral process begins –

Now, just pausing there, that suggests that the electoral process does not – if it be taken as – well, that suggests that the electoral process does not include the issuing of the writs, for example, which in our submission, would ordinarily be included.  But, importantly for our purposes, your Honours continued – begins on the date of nomination:

until the return of the writs for the election, as that is the time at which the electoral process is complete.

So your Honours there identified the completion of the process as the end of the Part XIX process, not as including any subsequent proceedings in the Court of Disputed Returns.

KIEFEL CJ:   You mean the term “electoral process” can be used in different ways?

MR DONAGHUE:   That is why I said, your Honour, it is not a term of art and not a constitutional expression and, in the end, we submit ‑ ‑ ‑

KIEFEL CJ:   Yes, to refer to different periods.

MR DONAGHUE:   Exactly, and so not ultimately helpful for the amicus to say the period of choice in 44 is the electoral process because that means all sorts of different things.  Similarly, with the question of when the election is completed, that could mean all sorts of different things.

Usually one would say the election is completed on the return of the writs.  If an unqualified candidate is returned, then one would say in a Vardon sense the election is not complete in that sense, but that does not mean the period of choice is still continuing; that just means the Court of Disputed Returns might order that people look again that at the choice made back at the time of the election to ascertain what the true choice was.  It has no effect, in our submission, on the period of choice.

EDELMAN J:   It is not a question of what the true choice was or the choice of the voter on the day or even, in your earlier expression, the true legal intent of the voter.  The question, if one wants to bring in the notion of process, it is the process of choice, not the act of choice.  That is the key point from Sykes v Cleary, is it not?

MR DONAGHUE:   The process of choice running from nomination through to the close of the poll but not thereafter, in our ‑ ‑ ‑

EDELMAN J:   Once it is accepted that the process of choice is not just the polling day from the moment that the voters turn up to the polls till the moment that the polls close, once it is accepted that that process can be earlier, why can it not be later as well?

MR DONAGHUE:   Because, your Honour, what one is – two answers.  An answer of authority is, we submit, that that is not what six members of the Court said in Sykes.  They expressly identified the choice as closing on the close of the poll, but perhaps the more satisfactory answer, as a matter of principle, is that in considering the question of how the vacancy should be filled in Wood ‑ and I submitted earlier that this was the first time the special count procedure was used – the Court looked at a number of possible options for filling the vacancy.

The expression I have been using, the true legal intent of the voter, is the expression that the Court used in Wood at 166, as what the Court was seeking to achieve by utilising the special count procedure and, in effect, what the Court says at 165 through to 166 is that the inclusion of the name of the unqualified candidate on the voting paper does not otherwise vitiate the election.  Such a candidate can be duly nominated, so their name is properly included on the paper. 

So what one does with the special count when one looks back, by treating the unqualified candidate as if they were deceased, is to ascertain the true legal intention of the voter as at the date when they case that vote – that is, as at here, 2 July.

It is not, in our submission, correct to characterise what happens in the Court of Disputed Returns or on a recount as involving the act of choice, that act being the end of the process of choice.  It is, in our submission, more correctly characterised as involving the re‑examination of the choice so as to identify the legally effective choice.

GAGELER J:   Is the distribution of preferences part of the process of making a legally effective choice?

MR DONAGHUE:   The distribution of them by the voter?

GAGELER J:   The distribution occurs in accordance with the rules set out in the scrutiny provisions of the Act.

MR DONAGHUE:   In our submission, your Honour, there are two parts to it.  The voter records their preferences at the time of the act of voting, and that is part of the process of choice.  The mechanism by which that is then given effect in identifying the candidates is, in our submission, not part of the process of choice; it is the ascertainment of the choice that is made.  If, for example, I vote, under the new rules, above the line – one, two, three, four, for a number of different parties – the legal effect of that exercise of me marking the ballot paper in that way depends on what the Electoral Act says about that.  But the Electoral Act is not itself changing or altering the choice that I have made, it is just giving effect to what my choice is understood to be if I mark the ballot paper in that way.

The deliberative process of choice with which 44 is concerned starts with the nomination, because it is from the process of nomination through to voting that one has the electoral campaign when voters are thinking about who they are going to vote for, considering their various options and then exercising their choice at the end of all of that on voting day.  But anything that comes thereafter cannot change the ballot papers as marked and just involves looking at them again in order to ascertain initially ‑ if everyone is validly elected ‑ it is a relatively straightforward exercise.  But once candidates are found not to be qualified, one does not, at the date of the special count, take account of anything that has happened subsequent to the date of polling or to what voters might think now if they were asked again, “What is your true intention now as to who should fill Ms Nash’s place?”  That is irrelevant.  We care only about what they thought back at the date of the election.

Our friends have sought to buttress their attempt to extend the period of choice beyond even the period identified in Culleton as the return of the writ, potentially to the life of the whole Parliament, by reference to some submissions that they make towards the end of their written submissions about the purpose of section 44(iv), the office of profit under the Crown provision.

GAGELER J:   Mr Solicitor, just before you get to that, what in your submission is the endpoint of the process in circumstances where you have an uncontested House of Representatives election?

MR DONAGHUE:   An uncontested election?

GAGELER J:   Uncontested.

MR DONAGHUE:   In that scenario, the Act requires the person to be declared elected on the date of nomination. 

GAGELER J:   So is there an endpoint to the process?

MR DONAGHUE:   An endpoint to the process of choice?

GAGELER J:   Yes.

MR DONAGHUE:   I am not, your Honours, sure that it is meaningful to talk about a choice being made at all in that situation.  If only one person runs then that is the candidate no matter what the voters think about that candidate there, so it is not clear to me that it is meaningful to speak about a process of choice in that situation.  Certainly, the process is over – must be over – on the declaration of the person as elected, in our submission.

GAGELER J:   It just seems the natural endpoint.

MR DONAGHUE:   The declaration of the person.  That, your Honour, was the submission that the Attorney put unsuccessfully in Sykes.  It was that the declaration was the endpoint, and the Court said the declaration is the announcement of the choice, not the end of the process of the choice.

But either way, your Honour, it is well before anything to do with Ms Hughes.  Ultimately, in this case, the amicus only succeeds if the period ends not at any of - the end of polling day, the declaration, the return of the writ.  They needed to run 12 months later and, in our submission, in circumstances where the process that fills the vacancy is a process that looks back to polling day that should not be accepted.

I am reminded that at the bottom of page 100 in Sykes the plurality refer to the proposition that I just mentioned to your Honours, that the person who is declared - the single candidate nominee is declared elected upon that date and that is one of the reasons that their Honours said the process of choice must extend to the nomination day because it is possible on the nomination day the candidate might actually be returned if nobody else contests the election.  So that is part, I think, of the reasoning process that led their Honours to extend the process back to that point in time.

GAGELER J:   But from what point?

MR DONAGHUE:   But from - I understand that is the point we are discussing but, in my submission, their Honours’ position on that was reasonably clear from the bottom part of page 99 which I have already taken your Honours to.  There are some submission from the amicus concerning whether or not one can derive support for this very extended temporal operation of 44 from the purpose they identify as the purpose underpinning the office of profit under the Crown, disqualification in 44(iv).

Our primary submission in relation to this, your Honours, is that the temporal period with which this case is concerned is a temporal period that must be the same for all five paragraphs of section 44, just as a matter of the structure of the provision and that it is therefore wrong in principle to focus on one of those paragraphs to say this is what we say the purpose of that paragraph is and to use that to determine the temporal period for the operation of the entirety of section 44.

In our submission, a proceeding in this Court under Part XXII of the Electoral Act is not properly characterised as a part of the electoral process. It is certainly not part of the process of choice under section 44, but it is not part of the electoral process even in the sense that your Honour has used that expression in Re Culleton, referring to the point up to the return of the writs. 

The reason for that is because, as this Court emphasised in Sue v Hill, what the Court of Disputed Returns is doing is exercising judicial power to resolve disputes about the legality of steps taken as part of the electoral process.  In exercising judicial power in that way, one can perhaps draw an imperfect analogy with what the Court does when it exercises its jurisdiction in relation to judicial review of administrative action. 

There may be an administrative decision‑making process that has taken place and reached a conclusion.  In a judicial review proceeding, the Court looks at that process and says was it legal?  Did it comply with the relevant strictures that the law has erected in relation to it?  But the fact that the Court is looking at the legality of the administrative process does not mean that the Court is itself part of the administrative process.  It is exercising judicial powers to police the lawful boundaries of the steps that have been taken. 

In a very real sense that is what this Court is doing as the Court of Disputed Returns.  If it finds that an error has occurred, as it did in relation to Senator Nash, then the Court makes orders designed to correct that error to ascertain the true legal intention of the voters.  By doing so it may complete the election in the sense that, as In re Wood indicates, the election has not been completed, by looking back at what was done by the voters here on 2 July and making orders designed to ascertain the true legal intent of the voters on that date. 

But none of that is to say that the Court is engaged in the process of choice.  It is still the electors directly choosing their representatives that made that process of choice, and the Court is giving legal effect to the choice they have made.

As to Sykes, I think that our learned friends submitted that, in effect, your Honours could disregard the discussion on page 99 as having been rejected by reason of the conclusion reached on page 100. In our submission, that is not a correct reading of what is there said because while the Court did reject the concept that section 44 is concerned with an act of choice rather than a process of choice, in the passages that we have relied on in the second half of paragraph 99, unequivocally identified the end of the choice as polling day. So that when their Honours said, near the bottom of 99:

the declaration of the poll, which is the formal announcement of the result –

does not amount to:

or even coincides with, the choosing . . . The declaration of the poll is the announcement of the choice made; it is not the making of the choice -

that was not a statement that was then disregarded by the Court’s conclusion that the period reaches back earlier than the point of time there identified.  All that was rejected was the idea that one can focus exclusively on that point in time.

So, when Mr Kennett refers to Free v Kelly, and says Ms Kelly had divested herself of the office before polling day, that would have been relevant if one focused only on the point of choice.  But it is not relevant in circumstances where one looks at the entire period from nomination to the date of choice as we accept Sykes requires one to do.  So there is no reason, in our submission, to treat their Honours as not having meant what they very clearly said in the second half of page 99.

Finally, your Honours, there has been some mention of the concept of reading what your Honour said in Culleton referring to the date of the return as the endpoint as meaning an effective return.  That, in our submission, is a concept that requires some care because there is no sense in which the return that was made in this case, which your Honours see in the court book at page 9, has at any point been invalidated or quashed or – and nor is there any sense in which the answers that your Honours gave to the referred questions in relation to Ms Nash require some new return to be issued. 

The only return that was issued in relation to the Senate election that took place on 2 July 2016 is the return you see at pages 8 and 9 in the court book.  That return was plainly effective in relation to the nine senators other than Senator Nash.  It clearly brought the election process to an end as an effective return, if that be a relevant concept, in relation to all of those electors. 

While it did not serve to fill the place for which Senator Nash was returned, the way that place is filled is not by some new return that on our friend’s case might be an effective return that would bring the electoral process to an end, the way it is filled is by an order of the Court declaring a new person duly elected and that person can then take their seat under 374. 

So it is not meaningful within the scheme of the Electoral Act to distinguish between a return and an effective return because the return – a return that is defective is never replaced with an effective return.  So, one cannot mark the endpoint of the choice by reference to something that does not exist.

KEANE J:   But it is about disputed returns.  The return is disputed.  We are the Court of Disputed Returns.  It is resolving the dispute as to the correctness of the return that leads us to be here.

MR DONAGHUE: Your Honour, in my submission, what leads us to be here is the reference from the Court under section 376, raising a question as to whether there was a vacancy in the place. The return itself has not been disputed. The qualification of one of the people named in the return has been disputed, and your Honours have ruled correctly so, but in our submission that does not displace the return.

The point I am trying to make is that, if one is looking for an effective return to mark the end of the electoral process or the period of choice one will look in vain.  There will never be an effective return because the return having happened, the Governor of the State certified to the Governor–General who the senators were and that is the end of the return process.  What this Court then does to fill the vacancy is something quite different.

KIEFEL CJ:   To take up the language of In re Wood, though, at page 164, the Court referred to:

the invalidity which affected Mr Vardon’s return amounted to a failure by the electors to choose a senator ‑ ‑ ‑

MR DONAGHUE:   I entirely accept that, your Honour.  There is no question that that place was not effectively filled and that orders of this Court were required to do so.  Your Honour is reading 164.  If you go to 165, the Court then raises but never ultimately answers, about five lines down on 165 it says:

It is therefore necessary to consider how the place which has been left unfilled should be filled.  Is the correct procedure to amend the return or to make a supplementary return –

So their Honours raised that idea, but at the end of this discussion the answer is not to have a supplementary return or an amended return, it is to make an order for a special count to declare a person duly elected.  That is how the Court does it.

So, in our submission, one does not get any comfort in extending the temporal period beyond, on our primary submission, the polling day but alternatively the return of the writs to a period 11 months later simply by saying one of the people who was returned was not qualified. 

While that is undoubtedly true, the procedure that the Act erects to rectify that problem is not to extend the life of the electoral process throughout the entire period of the life of the Parliament.  It is to create a judicial proceeding by which this Court can rectify the error by looking back to the choice made on polling day and so the nature of the existence of a proceeding in this Court provides no warrant to extend from the very precise and discrete period identified in the Act of no more than a period from the nomination to the return of the writ, the very indefinite criteria for which the amicus contends.

In that regard I should just note, your Honour, that your Honour Justice Gageler referred to the precise dates. The hour of nomination provision is 175 of the Electoral Act. The declaration of the poll is 283. They are both of course events that will operate in relation to everyone rather than individual candidates. So that approach to the provision creates certainty and clarity as to the period of constitutional disqualification under section 44.

The opposing contention means that one could never be certain whether the prohibition on being chosen in section 44 is or is not operative

because that depends on a decision this Court might make about other people and whether they are or are not qualified themselves, it being of course the constitutional disqualification of Ms Nash that raises the possibility that Ms Hughes, having taken an AAT appointment, nearly a year after she failed to secure election, might somehow lose her place in a way that is not just very harsh with respect to her, but that means that all of the voters, whose true legal intention was to return her as identified by the special count, are deprived of their vote for a valid candidate because of something that happened long after the process concluded.

Finally, your Honours, I am reminded the Attorney‑General does not oppose the costs order that is sought by Ms Hughes.  If the Court pleases.

KIEFEL CJ:   The Court will adjourn to consider the course that it will take.

AT 3.05 PM SHORT ADJOURNMENT

UPON RESUMING AT 3.12 PM:

KIEFEL CJ:   The Court is unanimously of the view that the summons should be dismissed.  The Court will publish its reasons at a later date.  The Commonwealth does not dispute Ms Hughes’ application for costs.  The orders of the Court therefore are:

1.The summons filed on 7 November 2017 for a declaration that Ms Hollie Hughes is duly elected as a senator for the State of New South Wales for the place for which Ms Fiona Nash was returned is dismissed.

2.The Commonwealth is to pay Ms Hughes’ costs.

The Court will adjourn until 9.45 am tomorrow for the pronouncement of orders.

AT 3.13 PM THE MATTER WAS ADJOURNED