Re Parry; Re Lambie; Re Kakoschke-Moore

[2017] HCATrans 254

[2017] HCATrans 254

IN THE HIGH COURT OF AUSTRALIA

SITTING AS THE COURT OF
DISPUTED RETURNS

Office of the Registry
  Canberra  No C26 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 MR STEPHEN PARRY

Office of the Registry
  Canberra  No C27 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 MS JACQUI LAMBIE

Office of the Registry
  Canberra  No C30 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 MS SKYE KAKOSCHKE‑MOORE

NETTLE J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO SYDNEY AND MELBOURNE

ON FRIDAY, 8 DECEMBER 2017, AT 10.12 AM

Copyright in the High Court of Australia

____________________

HIS HONOUR:   I propose to deal first with matters C26 and C27 of 2017 together.

MR S.P. DONAGHUE, QC, Solicitor‑General of the Commonwealth of Australia:   May it please the Court, I appear with MS Z.E. MAUD, for the Commonwealth Attorney‑General in each of those matters.  (instructed by Australian Government Solicitor)

MR P.H. SOLOMON, QC:   If your Honour pleases, I appear with MR C.O.H. PARKINSON, for Steven Martin in the Lambie reference (C27/2017).  (instructed by Corrs Chambers Westgarth)

MR P. KULEVSKI:   May it please the Court, I appear with MR R.J. SCHEELINGS, for Ms McCulloch in both the Parry and Lambie references (C26/2017 and C27/2017).  (instructed by Holman Webb Lawyers)

HIS HONOUR:   There has also been a communication from Mr Storer’s solicitors announcing that he will not be appearing by counsel today but that he supports the application made by the Solicitor.

MR DONAGHUE:   Thank you, your Honour.  Your Honour, in each of the two references that your Honour has just called on, the Senate has referred four questions in materially identical terms, the first question being whether by reason of 44(i) there is a vacancy in the representation in the Senate for the place for which the referred person was returned, the second question being how the vacancy should be filled, the third being what other orders should be made to finally dispose of the reference, and the fourth being costs.

The Attorney‑General’s submission in each of these two matters, that is, the references concerning Mr Parry and Ms Lambie, is that the Court should today finally answer questions (a) and (b) and should address question (c) following the report back to the Court after a special count has occurred.  Our submission in relation to the last of the references will be that your Honour should just answer question (a) and not (b) but I will explain that when we get to that point.

To that end, your Honour, the Attorney moves on the summons filed on 6 December 2017 and reads in support the affidavit of Timothy John Courtney of the Australian Electoral Commission, affirmed on 5 December 2017, and in each of the two references an affidavit of Julian Sinclair Ensbey of the Australian Government Solicitor, affirmed on 7 December 2017.  There are two affidavits, one from Mr Ensbey in each of the two proceedings.

HIS HONOUR:   Yes.

MR DONAGHUE:   The Attorney also relies on a separate report in each reference prepared by Mr Laurie Fransman of Queen’s Counsel of the United Kingdom Bar, in each case dated 6 December 2017.

As we understand it, there is not opposition from any of the persons that your Honour has just made parties to the references to the Court answering questions (a) and (b) today in the terms proposed by the summons upon which I have just moved.

We apprehend that the Court will wish to have an evidentiary foundation for making an answer to question (a) about whether there is a vacancy in the Senate and, to that end, the affidavit filed by Mr Ensbey in each matter and the Fransman report provides, in our submission, a sufficient evidentiary foundation for that purpose.

In relation to Mr Parry, our submission is that the Court can properly find that he was a citizen of the United Kingdom at the time that he nominated for election at the 2016 Senate election held on 2 July of that year and that, therefore, by reason of section 44(i) of the Constitution he was not capable of being chosen. Mr Parry does not dispute that conclusion. Indeed, he recorded his British citizenship as being the reason for his resignation of his place as a senator for Tasmania.

In terms of the material that would allow your Honour to be satisfied that Mr Parry was a United Kingdom citizen, if I could ask – this will not take long, your Honour, but if I could ask you to just turn to Mr Ensbey’s affidavit in that matter; that is in relation to Mr Parry.  The evidence is not, it is fair to say, particularly detailed, but it is nevertheless sufficient, we submit, to support a finding in circumstances where Mr Parry accepts his citizenship and no one disputes it.

So if your Honour goes to exhibit JSE‑1 you will see an email that Mr Parry sent to his Senate colleagues, recording his – or the difficulty in which he found himself in relation to section 44(i), in the first paragraph of that email he refers to the judgment the Court gave in Re Canavan, and then in the last sentence he says:

“As a result of this I have had cause to examine my citizenship status in relation to my late father having been born in the United Kingdom.”

And he records that his father moved to Australia as a boy in 1951 and married his mother in 1960 and he was born in the same year.

If your Honour goes to the next exhibit JSE‑2, you will see what is evidently the end of a chain of email correspondence between Mr Parry and the United Kingdom Home Office, which records:

“When you were born you were a citizen of the United Kingdom and Colonies under section 5(1) of the British Nationality Act 1948 (by descent from your UK born father).  You held UK Right of Abode under section 2(1)(b)(i) of the Immigration Act 1971.  This adds up to you being a British citizen today”.

So really, the Home Office was satisfied as to Mr Parry’s citizenship by descent from his UK born father.  We know that his parents were married and those facts put together support the conclusion drawn by Mr Fransman that Mr Parry was a citizen of the United Kingdom.  So, on that basis, your Honour, our submission is that your Honour can be satisfied that it is appropriate to answer question (a) in terms that there is a vacancy in the Senate and that is what we have sought in order 2 of the summons.

In relation to question (b), how should the vacancy be filled, the orders sought in the summons correspond with the orders that have now been made by this Court on a number of occasions in the recent past for the conduct of a special count in order to fill the vacant place.  Because Mr Parry and Ms Lambie were both returned as senators for Tasmania, our submission is that the appropriate way to proceed is by a single special count to identify the people who should be returned for each of those two places, and that is what recently occurred in relation to the Queensland Senate recounts that followed the disqualification of two Queensland senators as a result of the decision in Re Canavan.  So what we are asking your Honour to do, with respect, is the same as what has been done in the other recent matters.

Following the result of the recount and the report back to the Court, one would then, in our submission, reach question (c), and at that point there becomes a difference between the Parry reference and the Lambie reference because, as we currently apprehend it, there is no suggestion that the person likely to be returned to fill Mr Parry’s place has any further problem, but in relation to the person likely to be returned to fill Ms Lambie’s place, that is Mr Steven Martin, there is an issue.

Before I get to that issue, I should take your Honour briefly through the same exercise as I just did for Mr Parry in relation to question (a) and the UK citizenship in relation to Ms Lambie, given that we are asking your Honour to declare her place vacant. 

To that end, I think, your Honour, we filed a joint summons in both C26 and C27 so I have already moved on that summons.  I have read the affidavit of the AEC deponent, Mr Courtney, in support of both, but I need to read the second affidavit of Mr Ensbey, the one that concerns Ms Lambie.  If your Honour turns to Mr Ensbey’s affidavit in that matter, you will see that attached to it at JSE‑2 there is a copy of Ms Lambie’s birth certificate. 

I should say Ms Lambie, like Mr Parry, resigned her place in the Senate on the basis that she was a citizen of the United Kingdom, so she does not dispute that status.  One sees at JSE‑2 in the birth certificate about a third of the way down the page references to her father who was born in Scotland in 1951, and you also see at number point 16 that Ms Lambie’s parents were married prior to her birth, which is a relevant fact under the UK citizenship law.

If your Honour then turns to JSE‑3, you will see the Home Office Form RN which is the Home Office renunciation document.  The second page of that document is stamped by the Home Office as registered, dated 17 November 2017, and I do not need to take your Honour to it but in Mr Fransman’s report in relation to Ms Lambie, particularly at paragraphs 50 through to 56, Mr Fransman explains that in order to have an application for renunciation registered the UK Home Office first has to satisfy itself that the person was a British citizen.  So the fact that the Home Office accepted the renunciation form evidences the reasons, as Mr Fransman explained, for the Home Office’s acceptance that prior to the renunciation she held that status.

So, on that basis, your Honour, we submit that your Honour can properly be satisfied that it is appropriate to answer question (a) in the terms proposed in the summons indicating that there is a vacancy in the place for which Ms Lambie was returned.  The joint special count procedure is the same as I identified in relation to Mr Parry.

So that then brings us to the question (c) issue, and your Honour will have noted in our submissions and from what I have said, we are not actually asking your Honour to answer question (c) now because we do not think he can until the special count has been conducted and the material comes back. 

But, apprehending the likelihood that the result of the special count will be that Mr Martin is returned, we do submit it would be of assistance to the parties if your Honour is able to give some indication as to how the Court will be minded to deal with that issue, assuming it arises, because your Honour will have seen that Mr Martin’s solicitor, Matthew Richard Critchley, has sworn an affidavit on 30 November 2017, paragraph 13 to 15 of which squarely raise the question of whether Mr Martin held an office of profit under the Crown at the time that he was nominated and that the election occurred, and in light of this Court’s recent judgment in Re Nash [No 2] it follows that we cannot seek an order that Mr Martin be returned until the Court has ruled on the question squarely raised by that evidence. 

So that the position will be, if the special count is conducted next Tuesday, which is what we would anticipate, that by Tuesday afternoon we will know whether or not the result of the special count would return Mr Martin, but we will not be able to move the Court for an order to fill the vacancy until there has been a hearing and determination of the office of profit under the Crown question concerning ‑ ‑ ‑

HIS HONOUR:   Mr Solicitor, I have given it a little bit of thought overnight, and subject to what other counsel might say, I thought that rather than giving any directions now in anticipation of the need to have a dispute about Mr Martin what we should do is have the count come back say mid next week once the count report is in, when we will know what the position is, and make directions then with a view, I think, to a Full Court hearing on the issue, if it is necessary, probably late in January.

MR DONAGHUE:   Yes.  Well, I am of course content with that course.  I was not going to invite your Honour to actually make the orders now but even to give some indication along the line your Honour just gave so that the parties could order their affairs accordingly, but we would be content with that course to come back and the answer should be known by Tuesday afternoon, so it could be Tuesday afternoon or Wednesday at your Honour’s convenience, and then timetabling orders could be made for a final hearing of that question.

The only other issue I should mention is that the submissions filed on behalf of Ms McCulloch foreshadow an intention, in the event that Mr Martin were found to hold an office of profit under the Crown and not therefore to be capable of being chosen, to raise a further question as to the next person down the list, a Mr Waterman.  Our submission is that any question as to Mr Waterman’s capacity to be chosen is hypothetical unless and until the Court concludes that Mr Martin is not qualified, and that would accord with the position the Attorney adopted in the Re Day reference at the start of the year when our submission was that Ms Gichuhi’s qualification did not arise until it was decided that Mr Day was disqualified.

One could have, by the look of the submissions and the affidavit filed on Ms McCulloch’s behalf, thought there may be section 44(iv) and section 44(v) questions raised.  So there might be quite some need to litigate issues that never arise if Mr Martin is qualified.  So our submission is one should do that sequentially and only if Mr Martin is found not to be disqualified should one address Mr Waterman.

Ms McCulloch’s submissions record at paragraph 13 that she does not oppose that course if the Attorney‑General seeks it, as I just did, so I do not apprehend that Ms McCulloch will oppose what I just put to your Honour in light of the Attorney’s position, but she can speak for herself.  So for that reason, your Honour, we submit that today your Honour should make the orders sought in the summons in both C26 and C27, and unless your Honour has anything further, those are the Attorney’s submissions. 

HIS HONOUR:   Thank you, Mr Solicitor.  Mr Solomon.

MR SOLOMON:   Thank you, your Honour.  Your Honour, Mr Martin supports the directions proposed to be made today.  As to the future progress, can we say these things?  We infer that your Honour envisages listing a directions hearing on Wednesday or Thursday next week for the making of further directions in the event that the special count is as anticipated.  That is, of course, suitable.  At that time, there will be directions for facts, for opposition argument, for our response and for hearing.  Your Honour has evidenced that if this all transpires, the matter would be heard in late January.

HIS HONOUR:   Yes.

MR SOLOMON:   That is a matter for the Court and obviously suitable.  There will be a question whether the Court is assisted by relevant paperwork before Christmas, and for our part, if that is suitable for the Court, we would be able to accede to that.  In any event, it is a matter better addressed next Wednesday or Thursday perhaps.  There is one further matter that your Honour next Wednesday or Thursday will need to attend to.  Someone will need to contradict our contention. 

The contradictor might be Ms McCulloch’s team as they propose.  Alternatively, we submit not further, the Attorney has identified the prospect of an amicus being appointed.  These matters should await the matter returning next Wednesday or Thursday, but it will need attention at that time and if your Honour today considers the Court is assisted by paperwork this month, it would be at least of assistance for there to be some initial dialogue on that if your Honour was so minded. 

In any event, the suitable process is back in the middle of next week for directions, and the sequence of directions proposed in the Attorney’s outline looks suitable.  There will be a question of timing and your Honour will need to determine who is to be able to contradict the arguments we put.

HIS HONOUR:   Yes, thank you.

MR SOLOMON:   If your Honour pleases.

HIS HONOUR:   Mr Kulevski.

MR KULEVSKI:   Your Honour, given what has fallen from your Honour, any discussion about what is going to happen next Wednesday or Thursday is hypothetical at this point, so I will not trouble your Honour with it, other than to say that we agree with the course proposed by the Attorney and that

we consider ourselves an appropriate contradictor with plenty of time to prepare the matter before the end of January.

One further thing I shall mention, your Honour, is that in relation to question (d), it is perhaps appropriate, and we do not understand that there is any dissent from this by the Attorney, that an order be made that the Commonwealth pay Ms McCulloch’s costs of these proceedings, so that any preparatory work and further appearances will not be expended from her own financial resources. 

HIS HONOUR:   Thank you.

MR KULEVSKI:   Thank you, your Honour.

HIS HONOUR:   Mr Solicitor.

MR DONAGHUE:   Your Honour, I understand we have advised Ms McCulloch that we submit to an order that we pay her costs on a party to party basis.

HIS HONOUR:   And as to the contradictor, do you have anything to say at this stage?

MR DONAGHUE:   We apprehended in light of Ms McCulloch having been made a party that she would be performing that role.  She is already a party to the reference, her interests being recognised, we are paying her costs so we would not support bringing any further party in in those circumstances.

HIS HONOUR:   On 15 November 2017, the President of the Senate, pursuant to s 377 of the Commonwealth Electoral Act 1918 (Cth), transmitted to the Court in its jurisdiction as the Court of Disputed Returns under Part XXII of the Act the following statement of questions upon which the determination of the Court is desired:

(a)whether, by reason of s 44(i) of the Constitution, there is a vacancy in the representation of Tasmania in the Senate for the place for which Stephen Parry was returned;

(b)if the answer to question (a) is “yes”, by what means and in what manner that vacancy should be filled;

(c)what directions and other orders, if any, should the Court make in order to hear and finally dispose of the reference; and

(d)what, if any, orders should be made as to costs of these proceedings.

In addition to an extract of the Journals of the Senate containing the Senate’s resolution, the following documents relating to the questions were also transmitted:  a copy of the writ issued by the Governor of Tasmania, dated 12 May 2016, for the election of 12 senators for the State of Tasmania with an endorsement by the Acting Australian Electoral Officer for the State of Tasmania, Mr David John Molnar, certifying and returning the persons duly elected, tabled in the Senate on 30 August 2016; a copy of a letter of resignation from Mr Parry resigning his place as a senator for Tasmania, together with a copy of a letter from the Governor‑General to the Governor of Tasmania, dated 2 November 2017, both tabled in the Senate on 13 November 2017; and extracts from the Senate debates on 13 November 2017.

As well as the documents so referred, the Solicitor‑General for the Commonwealth appearing on behalf of the Attorney‑General of the Commonwealth has tendered the following as evidence:

1.A copy of an email dated 31 October 2017 sent on behalf of Mr Parry to senators in which Mr Parry explained that he had written to the British Home Office seeking clarity as to the status of his citizenship of the United Kingdom and acknowledged that in the event it were found that he was a British citizen by descent, he would be in breach of s 44(i) of the Constitution and would resign as a senator.

2.A copy of an email dated 31 October 2017 from Mr Ian Page of the United Kingdom Home Office to Mr Parry confirming that Mr Parry was a citizen under section 11(1) of the British Nationality Act 1981.

3.A copy of a statement to Senate colleagues in which Mr Parry referred to the advice which he had received from the British Home Office and to his resignation as a senator.

4.An expert report of Laurie Fransman QC of 6 December 2017 in which Mr Fransman opines inter alia that Mr Parry has been a British citizen from 1 January 1983 and remains a British citizen.

On the basis of the documents referred to the Court, which I shall receive as evidence in the proceedings, and the evidence tendered by the Solicitor‑General, which is uncontradicted, I am satisfied that Mr Parry was at the time of nomination for the general election for the Commonwealth Parliament held on 2 July 2016 a British citizen and therefore a citizen of a foreign power within the meaning of s 44(i) of the Constitution and consequently disqualified from being elected as a senator for the State of Tasmania.

On 15 November 2017, the President of the Senate, pursuant to s 377 of the Commonwealth Electoral Act 1918 (Cth), transmitted to the Court in its jurisdiction as the Court of Disputed Returns under Part XXII of the Act the following statement of questions upon which the determination of the Court is desired:

(a)whether, by reason of s 44(i) of the Constitution, there is a vacancy in the representation of Tasmania in the Senate for the place for which Jacqui Lambie was returned;

(b)if the answer to question (a) is “yes”, by what means and in what manner that vacancy should be filled;

(c)what directions and other orders, if any, should the Court make in order to hear and finally dispose of the reference; and

(d)what, if any, orders should be made as to the costs of these proceedings.

In addition to an extract of the Journals of the Senate containing the Senate’s resolution, the following documents relating to the questions were also transmitted:  a copy of the writ issued by the Governor of Tasmania, dated 16 May 2016, for the election of 12 senators for the State of Tasmania with an endorsement by the Acting Australian Electoral Officer for the State of Tasmania, Mr David John Molnar, certifying and returning the persons duly elected, tabled in the Senate on 30 August 2016; a copy of a letter of resignation from Ms Lambie resigning his place as a senator for Tasmania, dated 14 November 2017 and tabled in the Senate on the same day; a copy of a letter from the President of the Senate to the Governor of Tasmania, dated 14 November 2017, tabled in the Senate on 15 November 2017; and extracts from the Senate debates on 14 November 2017.

As well as the documents so referred, the Solicitor‑General for the Commonwealth appearing on behalf of the Attorney‑General of the Commonwealth has tendered the following as evidence:

1.A copy of an email sent by Mr Ian Page of the United Kingdom Home Office to Ms Lambie and her advisors on 14 November 2017.

2.A copy of a certified record of birth for Ms Lambie dated 8 December 1988.

3.A copy of a Form RN Declaration of Renunciation of British Citizenship signed by Ms Lambie and stamped by the United Kingdom Home Office as having been registered on 17 November 2017.

4.An expert report of Laurie Fransman QC of 6 December 2017 in which Mr Fransman opines inter alia that Ms Lambie was a British citizen from 1 January 1983 to 17 November 2017.

On the basis of the documents referred to the Court, which I shall receive as evidence in the proceeding, and the evidence tendered by the Solicitor‑General, which is uncontradicted, I am satisfied that Ms Lambie was at the time of nomination for the general election for the Commonwealth Parliament held on 2 July 2016 a British citizen and therefore a citizen of a foreign power within the meaning of s 44(i) of the Constitution and thus disqualified from being elected as a senator for the State of Tasmania.

In proceeding C26 of 2017 the Court orders as follows:

1.The letter from the President of the Senate to the Chief Executive and Principal Registrar of the High Court dated 15 November 2017 and its attachments are to be evidence in the proceedings.

2.Questions (a) and (b) referred to the Court of Disputed Returns by the President of the Senate in his letter dated 15 November 2017 be answered as follows:

(a)there is a vacancy by reason of s 44(i) of the Constitution in the representation of Tasmania in the Senate for the place for which Mr Stephen Parry was returned;

(b)the vacancy in the representation of Tasmania in the Senate should be filled by a single count of the ballot papers in accordance with orders number 3 to 6 which I shall make hereafter in each of proceedings C26 and C27 of 2017.

In proceeding C27 of 2017 the Court orders that:

1.The letter from the President of the Senate to the Chief Executive and Principal Registrar of the High Court dated 15 November 2017 and its attachments are to be evidence in the proceedings.

2.Questions (a) and (b) referred to the Court of Disputed Returns by the President of the Senate in his letter dated 15 November 2017 be answered as follows:

(a)there is a vacancy by reason of s 44(i) of the Constitution in the representation of Tasmania in the Senate for the place for which Ms Jacqui Lambie was returned;

(b)the vacancy in the representation of Tasmania in the Senate should be filled by a single special count of the ballot papers in accordance with orders number 3 to 6 which I shall hereafter make in each of proceedings C26 and C27 of 2017.

In each of proceedings C26 and C27 of 2017, the Court orders that:

3.The Australian Electoral Officer for the State of Tasmania cause to be undertaken a special count of the ballot papers cast for candidates for election for the Senate pursuant to the writ issued by the Governor of Tasmania dated 16 May 2016 for the election of 12 senators for the State of Tasmania for the purpose of determining the candidates entitled to be elected for the places for which Stephen Parry and Jacqui Lambie were returned.

4.The special count of the ballot papers be conducted in accordance with the directions which are set out in the schedule annexed to the summons dated 6 December 2017 and which will be annexed to the orders.

5.There be liberty to apply to a Justice of the Court in respect of any further questions which may arise as to the method of counting the ballot papers.

6.Upon completion of the special count, the Australian Electoral Officer for the State of Tasmania report to the Court the 12 candidates who, in order, would be elected upon application of the rules for counting set out in s 273 of the Commonwealth Electoral Act 1918 (Cth).

In proceeding C27 of 2017, it is further ordered that the Commonwealth shall pay Ms McCulloch’s costs of the proceeding.

MR SOLOMON:   Your Honour, if your Honour is expressly going to make that order, would your Honour then also for completeness make it in respect of Steven Martin?

HIS HONOUR:   Mr Solicitor?

MR DONAGHUE:   No objection, your Honour.

HIS HONOUR:   Vacate the last order and order in its place that the Commonwealth shall pay both Mr Martin and Ms McCulloch’s costs of the proceedings, and I propose to order that the further hearing of the summons be adjourned to Wednesday, 13 February 2017 at 9.30 am, unless that causes anyone significant inconvenience.

MR DONAGHUE:   That is suitable to us, your Honour.

MR SOLOMON:   Your Honour, just for the transcript, I think your Honour read February instead of December.

HIS HONOUR:   Thank you, wishful thinking, 13 December 2017.

MR SOLOMON:   May it please the Court.

HIS HONOUR:   Thank you.

MR SOLOMON:   Yes, thank you, your Honour.

HIS HONOUR:   Thank you, gentlemen.  I will deal now with matter C30 of 2017.

MR S.P. DONAGHUE, QC, Solicitor‑General of the Commonwealth of Australia:   May it please the Court, I appear with MS Z.E. MAUD, for the Commonwealth Attorney‑General in each of those matters.  (instructed by Australian Government Solicitor)

MR D.F. JACKSON, QC:   If your Honour pleases, I appear with my learned friends, MR A.L. TOKLEY, SC and MR A.K. FLECKNOE‑BROWN, for Ms Kakoschke‑Moore (C30/2017).  (instructed by Nick Xenophon & Co Lawyers)

HIS HONOUR:   Thank you, Mr Jackson.

MR JACKSON:   Your Honour, may I just say one thing before my learned friend speaks about the matter and that is that a draft order, or some versions of a draft order have been provided to us and there has not been the opportunity to communicate to my learned friend about our view on the last version of those and the position is that, in respect of the draft order which was provided with an amendment this morning, and that is the one that has 13 paragraphs, we would be content with the making of an order in that form.

HIS HONOUR:   Thank you.  I will hear from the Solicitor first, thank you.

MR DONAGHUE:   Thank you, your Honour.  Your Honour, the same four questions were referred by the Senate in this matter as in the two matters your Honour has just dealt with.  Unlike those two matters, my submission today is that the Court should answer only question (a) in light of the submissions that have been filed on behalf of Ms Kakoschke‑Moore.

Accordingly, I move only on part of the summons filed on 7 December 2017, seeking orders 1 and 2(a) to be made today.  Order 1 is the order about the letter from the President of the Senate being evidence in the proceeding and order 2(a) concerns the existence of a vacancy.  If one gets to the point of there being a vacancy, then one reaches question (b) referred from the Senate as to how that vacancy should be filled and that is the matter that has emerged as a matter in dispute between the parties.  We do not submit that your Honour should answer it now without there having been somewhat more opportunity to develop the respective positions of the parties.

As to the answer to question (a) and the vacancy, the material before the Court is a little different in this matter than in the other matters, but within the body of the documents that were referred from the Senate there is a resignation letter that was written by Ms Kakoschke‑Moore in which she accepted that she was a British citizen, and, in addition, in the written submissions filed on her behalf by counsel appearing today in paragraphs 10 and 11 it is accepted that Ms Kakoschke‑Moore was a British citizen, and in circumstances where she is represented and accepts that she held that status we submit that there is no reason for your Honour not to make an order declaring her place to be vacant on the basis that she was a British citizen at the time.

HIS HONOUR:   I must say, Mr Solicitor, looking at the material last night, I thought it was a bit light on.

MR DONAGHUE:   Yes.  Well, this matter, as your Honour knows, has come on more quickly than the other matters and I ‑ ‑ ‑

HIS HONOUR:   I was wondering, could we get some material of the appropriate kind together by next Wednesday or is that asking too much?

MR DONAGHUE:   Well, it may be that that question might be more easily directed to my learned friends because I do not know what material they have in terms of what Ms Kakoschke‑Moore obtained in order to satisfy herself that her resignation was appropriate.  So it may be that that is easily done.  I am not sure – I know Mr Fransman has been under heavy demand from us in recent times and I believe that his availability has become more limited so I am not sure whether we can get a report from him.

But that said, your Honour may not need that because there are many reports from Mr Fransman explaining the basis of the UK citizenship law and it may be that on the basis of that material, even if not directed specifically to Ms Kakoschke‑Moore, it is still obvious, having regard to his explanation of the legal principles that ‑ ‑ ‑

HIS HONOUR:   I apprehend that is right.  If we have the basic documents to demonstrate the proof of the admission, I suspect what we have got from Mr Fransman will get us there.

MR DONAGHUE:   Indeed.  So I would hope that it would be possible to do it by next Wednesday, and I do accept that there is much less material in relation to question (a) here than in the other matters.  It really does not go higher than the resignation letter and the admission.  If your Honour wants more material in that way then, of course, it would follow that the whole summons should be adjourned to next Wednesday and no order as to the vacancy would be made today.

In light of Mr Jackson’s indication as to his client’s agreement to the order, can I hand up to your Honour the document to which Mr Jackson was referring, this being the order with 13 paragraphs.  It very substantially mirrors the orders that were proposed on the last page of the written submissions that were filed on Ms Kakoschke‑Moore’s behalf, the modifications being modifications to the dates of the provision of evidentiary material in orders 1 and 2 and bringing forward the date for the Attorney‑General’s submission from 29 January to 22 January.

But, most relevantly, and importantly, the substantive difference is that Ms Kakoschke‑Moore’s proposed orders had proposed that the matter be referred for a hearing before a Full Bench of the Court.  What we have in mind, and the reason we condensed the timeline for submissions, is that it would be a more appropriate way to proceed for the Court to have before it both the submissions filed on Ms Kakoschke‑Moore’s behalf and on the Attorney‑General’s behalf before the Court decides how the matter should proceed.

The reason we say that is, with great respect to our friend, at the moment it appears to us that the argument that they are advancing is contrary to numerous Full Court authorities – Sykes, Canavan and Nash at least.  Depending on how it is developed, it may well be that our submission would be that a single Justice should dispose of this argument, but it seems to us appropriate that the matter be prepared for argument on the basis that it could be heard either way.

If your Honour were ultimately to order that there be a special sittings to deal with the Martin matter in that last week of January, it may be that if we come back quickly after the Attorney’s submissions are filed on 22 January – that is the week before – it could either be slotted in after the Martin hearing, all the submissions being done, or it could be dealt with by a single Justice at some other time, depending on the judgment your Honour makes on the basis of that material.

HIS HONOUR:   Yes.

MR DONAGHUE:   So, in circumstances where the Court is not coming back for its regular sittings until 5 February 2018, that being the same date that the Senate resumes, we do submit that there is public interest in resolving this question before 5 February, if that is possible.  But we apprehend that, if we were to file our written submissions by 22 January and the matter was then listed as soon as possible thereafter, the Court would be able to determine whether the parties should show up before a Full Bench the following week or a single Justice probably likewise the following week.

So that is the thinking that underpins the proposal, which I imagine was clear to our learned friends in terms of the way that we structured that revision to the proposed order.

HIS HONOUR:   These draft orders make no provision for the filing of submissions by the Attorney.

MR DONAGHUE:   By the Attorney?

HIS HONOUR:   Yes.

MR DONAGHUE:   Order 8, your Honour.

HIS HONOUR:   I am sorry, it is on the back.

MR DONAGHUE:   So Ms Kakoschke‑Moore’s draft had proposed that she file on the 15th and that the Attorney file on the 29th.  What we did is we ‑ in order to preserve the possibility of a hearing in the week of the 29th, we condensed our time back to the 22nd.  We do not think your Honour needs to have seen the reply before you judge whether it goes to a Full Court or a single Justice so we said, after our submissions go in, your Honour could then decide the fate of the matter in terms of how it should proceed, but that all the submissions would be done so as to allow a hearing, either before a Full Court or a single Justice in the week of the 29th.  That is the logic underpinning the proposed order.

HIS HONOUR:   Yes.

MR DONAGHUE:   If the Court pleases.

HIS HONOUR:   Thank you.  Mr Jackson.  May I ask you at this stage ‑ ‑ ‑

MR JACKSON:   Thank you, your Honour.  Your Honour, I apologise for the submissions being a bit light on in terms of the evidence but, your Honour, there is a number of – due to a number of matters, one of which is the fact that it was only two days ago that the email material confirming – as we would be submitting – that Ms Kakoschke‑Moore was no longer a citizen of the United Kingdom came to hand.

HIS HONOUR:   Mr Jackson, I fully understand that.  It was not meant to suggest that it should have been got by now, just that it is not enough as it stands.

MR JACKSON:   No, no, your Honour, I understand that.  Your Honour, so far as the orders are concerned, as I indicated earlier, we are content with them if your Honour were to want to have the matter before your Honour on the 15th; it could be done for further directions.  But as your Honour will see from the draft order, paragraph 1 would have the Attorney’s further affidavits by that date, our further material by the 22nd.  But, your Honour, subject to that, we would be happy with the order that my learned friend has referred to being made.

HIS HONOUR:   Thank you, Mr Jackson.  One thing I did want to ask you was about the submission as to the merits.

MR JACKSON:   Yes.

HIS HONOUR:   I looked at it last night and, as I understand it, it is said that because Ms Kakoschke‑Moore was a candidate, albeit one who was disqualified but has since ceased to have foreign citizenship, she is qualified, as it were, to be counted in any recount.  Is that the way it is put?

MR JACKSON:   Yes.  Could I put it a little more fully than that, your Honour, and just to indicate the steps that appear to be involved.  As your Honour will have seen, she is still in the election as a member of the Nick Xenophon Team and the party name and the affiliations of candidates can be seen in Mr Courtney’s affidavit; it is exhibit TJC‑4 at page 24 of that document which sets out above the line, as it were, there were the four candidates for the Nick Xenophon Team, and below the line those persons also, and your Honour will see that in every case they have the – as with all the other candidates, they have the names of the parties there set out.

Now, your Honour, if a special count – as had been proposed before – was conducted, it seems likely that the successful candidate would be Mr Storer but things have moved on and there will have to be some material about this.  In the time since that election, circumstances have resulted in Mr Storer no longer being a member of that party, and treating votes – this is the submission that will be made – at the election in favour of that party as votes for him now when he is not a member of that party would not, we would submit, reflect the choice then being exercised by voters.

Now, your Honour, ultimately we would be seeking orders which resulted in Ms Kakoschke‑Moore being the person who fills the vacancy in the Senate.  The precise course to be adopted may depend on there being a count – whether one describes it as special or not – by reason of the 12th senator, Mr Day – the 12th former senator, Mr Day, his cessation of tenure and a recount of the effect of his votes.

Now, your Honour, could we just say in relation to the Court’s powers in that regard that one does have the opening words of – I am sorry, your Honour, I should say in relation to the ambit of the Court’s powers – one has the opening words of s 360 of the Commonwealth Electoral Act “powers shall include”, one has the observations as to the broad ambit of that power in In Re Wood, and I think we have given your Honour the reference in our submission to page 162.

That case also seems to demonstrate that an unqualified candidate but one who has completed an apparently valid nomination form is yet a candidate – and again we have given your Honour the reference – and she is in a position where she is now no longer disqualified and the case is in one sense the reverse/obverse, whichever one prefers, in Re Nash [No. 2].

Your Honour, could we just say this also.  Your Honour, the extent to which the electoral laws have made provisions for the provisions of a ballot paper to indicate the political party to which a Senate candidate belongs has varied from time to time, where, as is now the case, the party affiliations are on the ballot paper and where there is power in the Senate election to vote, as it were, en bloc for that party’s candidates, the notion of affiliation to the party is a significant element in the elector’s choice.

Your Honour, that is, of course, something that the provisions of s 15 of the Constitution themselves reflect in the circumstances to which they apply. Your Honour, what we would be saying ultimately is that to replace a candidate of one party who has in fact received the quota by a person who is no longer a member of the party would be inappropriate.

Now, your Honour, that needs development, of course.  It needs some consideration, as my learned friend has suggested, of the decisions in the past which have not been dealing with a consideration in circumstances like the present.  Your Honour, that is the substance of what we would be saying.

HIS HONOUR:   I follow.  It is just that it strikes me, on the evidence as I have it at the moment, that Ms Kakoschke‑Moore was disqualified during the period in which the process for election of the candidates remained uncompleted and, thus, in view of what the Full Court has recently said in Re Nash [No. 2], one might discern that she would be disqualified from participating in the recount.

MR JACKSON:   Well, your Honour, that would be an issue that we would wish to argue about, or make submissions about to the contrary of that ‑ ‑ ‑

HIS HONOUR:   Will it be sought to overturn what was said in Re Nash [No. 2]?

MR JACKSON:   Well, your Honour, the Court in that case was not, of course, dealing with a case like this.

HIS HONOUR:   No.

MR JACKSON:   And what we would say is that – and, your Honour, this I think will appear in our submissions – if we were seeking to overrule or to have that departed from then, of course, the Court would need to give consideration to having a Full Bench deal with the matter ‑ ‑ ‑

HIS HONOUR:   Exactly.

MR JACKSON:   ‑ ‑ ‑ and we would raise that in our submission.

HIS HONOUR:   Yes, I see.  I was just trying to get an idea now in advance so we can do as much planning as possible for allocation of resources.

MR JACKSON:   Yes.

HIS HONOUR:   I take it, it is yet to be decided, is it?

MR JACKSON:   Well, to a degree, your Honour, but I must say, speaking personally, I suspect this is a case where all the Members of the Court are going to have to sit at some point.

HIS HONOUR:   Yes, I understand that.

MR JACKSON:   Your Honour, could I just say, as far as we are aware, there is no contention, or no contention yet, by Mr Storer that the circumstances in which he ceased to be a member of the party are challenged, or that the consequence of that is challenged, but one never knows.

HIS HONOUR:   Yes.

MR JACKSON:   And that may raise another issue itself.

HIS HONOUR:   Thank you very much, Mr Jackson.

In matter C30 of 2017, the Court orders that:

1.The Attorney‑General of the Commonwealth file and serve any further affidavit from an appropriate deponent concerning the lodgement and acceptance of the nominations of Ms Kakoschke‑Moore and each other candidate for the Senate endorsed by the Nick Xenophon Team and the votes cast for all nominated candidates for the Senate in South Australia at the 2016 election by 15 December 2017.

2.Ms Skye Kakoschke‑Moore file and serve any affidavits concerning her renunciation of foreign citizenship and/or any other matters by 22 December 2017.

3.Mr Storer file and serve any affidavit by 22 December 2017.

4.The Attorney‑General file and serve any statement of agreed facts by 4 pm on 9 January 2018.

5.The Attorney‑General file and serve any application book by 4 pm on 9 January 2018.

6.Subject to any further or other direction, Pt 44 of the High Court Rules 2004, with any necessary variations or adaptations, applies to this proceeding as if it were an appeal.

7.Ms Kakoschke‑Moore file and serve annotated written submissions by 15 January 2018.

8.The Attorney‑General and any other party to the reference file and serve annotated written submissions by 22 January 2018.

9.Ms Kakoschke‑Moore file and serve any annotated reply submissions by 25 January 2018.

10.Service of documents may be effected by electronic transmission.

11.The reference be listed for directions on the first available date after 22 January 2018.

12.The Commonwealth pay the costs of Ms Kakoschke‑Moore and Mr Timothy Storer on a party/party basis.

13.Liberty to apply on 24 hours’ written notice is reserved.

MR DONAGHUE:   Your Honour, may I just raise one issue that has occurred to me as your Honour was reading those orders, which is that the actual subject of the submissions is not clearly identified.  This is our fault in the way that we have framed it, but in terms of what the parties are doing, it may be that they are directing submissions to whether or not order 2(b) in the summons should be made and that it is the summons that is the focus of the question or perhaps an alternative would be the answer to question (b) referred by the Senate, so it could be that one – but I am just conscious if something is perhaps ultimately to be referred to the Full Court it will either need to be the summons, or part thereof, or perhaps a question reserved under s 18, in which case we should perhaps identify what that question is.

HIS HONOUR:   At this stage?  Is it not sufficient to say that the submissions must go to all of the issues which are in dispute and that would include both the question of vacancy, if that is going to be contentious and I doubt if it will, and also the ability or qualification for Ms Kakoschke‑Moore to be counted in the recount?

MR DONAGHUE:   Yes.  Well, that would then suggest that effectively the scope of the debate is whether or not the order sought in the summons should be made.  Well, I am content with that.

HIS HONOUR:   That is satisfactory.

MR DONAGHUE:   Yes.  Thank you, your Honour.  The only other question I raise is that we anticipate that the Court will advise us in due course as to the likely date in order 11.

HIS HONOUR:   Of course.

MR DONAGHUE:   Yes, thank you.

HIS HONOUR:   Mr Jackson, do you have anything to add to that?

MR JACKSON:   No, your Honour.

HIS HONOUR:   Thank you.  In this matter, I will adjourn to a date to be fixed to be notified to the parties as soon as can conveniently be done and in matters C26 and C27 I will adjourn until 9.30 next Wednesday, 13 December.

AT 11.06 AM THE MATTER WAS ADJOURNED