Re Parry; Re Lambie

The High Court of Australia, sitting as the Court of Disputed Returns, considered questions referred concerning Mr Stephen Parry and Ms Jacqui Lambie. The proceedings involved the Commonwealth Attorney-General, Mr Martin, and Ms McCulloch. The immediate dispute concerned the due election of Mr Colbeck and Mr Martin, following a special count that identified Mr Martin as filling one of the two vacancies in the Senate representation of Tasmania. The Court was asked to provide directions regarding a summons seeking orders for the due election of Mr Colbeck and Mr Martin, with proposed modifications to the orders and submissions schedule.

The central legal issue before the Court was whether Mr Martin was incapable of being chosen or of sitting as a Senator by reason of section 44(iv) of the Constitution. This question arose in the context of potential overlap with the issues in *Re Nash*, concerning the three- or six-year term for Senators. The Court needed to determine how to frame the question for the Full Court to resolve Mr Martin's eligibility without prejudicing or being prejudiced by the *Nash* proceedings, particularly regarding the potential role of the Senate in determining Senatorial terms.

The Court's reasoning focused on precisely defining the question to be reserved for the Full Court. The Solicitor-General proposed, and the Court ultimately adopted, the question: "is Mr Martin incapable of being chosen or of sitting as a Senator by reason of s 44(iv) of the Constitution?". This formulation was intended to address Mr Martin's eligibility directly, drawing on the language of section 44 of the Constitution, and to avoid the complexities and potential procedural difficulties that arose from seeking an order for a Senator to be "duly elected" in a manner that might intersect with the *Nash* proceedings. The Court also ordered that Mr Colbeck be served with the process, allowing him to make an informed decision about his involvement, and directed that the matters be kept together.

The Court made orders setting out a timetable for the filing and service of various documents, including a notice of constitutional matter, statements of agreed facts, written submissions, and a joint book of authorities. It also ordered that Part 44 of the High Court Rules 2004 would apply to the proceeding as if it were an appeal, and that service of documents could be effected by electronic transmission. Crucially, the Court reserved the question of Mr Martin's eligibility under section 44(iv) of the Constitution for consideration by the Full Court.