Re Nash (No 2)

[2017] HCA 52

HIGH COURT OF AUSTRALIA

KIEFEL CJ,
BELL, GAGELER, KEANE AND EDELMAN JJ

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

Re Nash [No 2]

[2017] HCA 52

Date of Order:  15 November 2017
Date of Publication of Reasons:  6 December 2017

C17/2017

ORDER

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.

Representation

S P Donaghue QC, Solicitor-General of the Commonwealth with M P Costello and J D Watson appearing on behalf of the Attorney-General of the Commonwealth (instructed by Australian Government Solicitor)

A R Moses SC with S J P Duggan and P G Sharp appearing on behalf of Ms Hughes (instructed by Harpur Phillips)

G R Kennett SC with B K Lim appearing as amicus curiae (instructed by Australian Government Solicitor)

No appearance for the Hon Ms Nash

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Re Nash [No 2]

Constitutional law (Cth) – Parliamentary elections – Reference to Court of Disputed Returns – Where Court held there was a vacancy in representation of New South Wales in Senate – Where Court made directions for special count of ballot papers to fill vacancy – Where orders sought following special count that Ms Hollie Hughes be declared elected as senator to fill vacancy – Where Ms Hughes nominated for election to Senate at 2016 general election – Where Ms Hughes not declared elected following polling for 2016 general election – Where Ms Hughes appointed to Administrative Appeals Tribunal one year after 2016 general election – Where Ms Hughes resigned from that position upon Court holding there was a vacancy in representation of New South Wales in Senate – Where that position was "office of profit under the Crown" within meaning of s 44(iv) of Constitution – Whether holding position for that period rendered Ms Hughes "incapable of being chosen" as a senator under s 44(iv) of Constitution.

Constitutional law (Cth) – Parliamentary elections – Reference to Court of Disputed Returns – Jurisdiction of Court to determine whether a person sought to be declared elected to fill a vacancy is disqualified under s 44 of Constitution.

Words and phrases – "electoral choice", "electoral process", "hiatus", "incapable of being chosen", "nomination", "office of profit under the Crown", "polling", "process of being chosen", "scrutiny", "special count", "vacancy".

Constitution, ss 7, 10, 12, 13, 15, 24, 30, 31, 41, 44, 44(i), 44(iv), 45, 45(i), 51(xxxvi).
Administrative Appeals Tribunal Act 1975 (Cth), s 15(1).
Commonwealth Electoral Act 1918 (Cth), ss 102(4), 152, 152(1)(a), 152(1)(b), 152(1)(c), 152(1)(d), 155, 156(1), 157, 159, 167(1), 170(2)(a)(i), 175(1), 175(2), 176(1), 177(1), 220, 283(1),…