Re Nash (No 2)

The High Court of Australia, constituted as the Court of Disputed Returns, considered a reference concerning the eligibility of Ms Hollie Hughes to fill a vacancy in the representation of New South Wales in the Senate. Following a prior determination that a vacancy existed due to the ineligibility of Senator Fiona Nash, the Court had directed a special count of ballot papers to fill that vacancy. Ms Hughes, who had been a candidate at the 2016 general election, was now sought to be declared elected to fill the vacancy.

The central legal issues before the Court were whether Ms Hughes was rendered "incapable of being chosen" as a senator by reason of holding an "office of profit under the Crown" within the meaning of s 44(iv) of the Constitution, and whether the Court had jurisdiction to determine this disqualification in the context of filling a casual vacancy. Ms Hughes had been appointed to the Administrative Appeals Tribunal, an office of profit under the Crown, approximately one year after the 2016 general election and resigned from this position only after the Court had declared the vacancy.

The Court reasoned that the "process of being chosen" as a senator, for the purposes of s 44(iv), extended beyond the initial nomination and polling at a general election to encompass the entire electoral process, including the filling of a casual vacancy. By holding an office of profit under the Crown during the period when the special count was being conducted to fill the vacancy, Ms Hughes was considered to have been "incapable of being chosen" at that time. The Court affirmed its jurisdiction to consider such disqualifications when determining who should fill a vacancy.

Consequently, the Court dismissed the summons seeking a declaration that Ms Hollie Hughes be duly elected as a senator. The Commonwealth was ordered to pay Ms Hughes' costs.