Re Nash [2017] HCATrans 234 (15 November 2017)

Last Updated: 20 November 2017

[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] HCA 22; (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 In re 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.

Beyond that, we submit that the submissions that the amicus makes as to the purpose of section 44(iv) involve a radical extension of the previously identified purposes of that provision because when one looks at the discussion in Sykes v Cleary of the purposes of the office of profit under the Crown prohibition, and your Honours see this at pages 95 through to 97 of the report in Sykes, they are, in our submission, purposes that principally focus on the difficulty that will arise from simultaneous occupation of an office of profit under the Crown while being a Member of Parliament. So, at page 95, for example, there are, about point 2 on the page:

three main considerations or policies –

said to underpin the prohibition:

(1) the incompatibility of certain non-ministerial offices under the Crown with membership in the House of Commons . . . (2) the need to limit the control or influence of the executive government over the House . . . (3) the essential condition of a certain number of Ministers being members of the House for the purpose of ensuring control –

All of those are, in our submission, purposes directed, at least principally, to the capacity for incompatibility arising from simultaneous service as a parliamentarian and occupation of an “office of profit under the Crown”. Over the page on page 96, there are some identified incompatibilities between holding the two positions – an office of profit and membership of the House – which likewise, as we read them, are concerned, at least primarily, with simultaneous occupation of two offices.

Sykes does involve some extension beyond simultaneous occupation of both offices in that because it holds that the principle operates back to the date of nomination it is possible for a person who is not yet a Member of Parliament but who has nominated to become a Member of Parliament to fall foul of the prohibition even though they do not hold both positions. But, that is explained in Sykes principally by reference to the imperatives of certainty in the electoral process.

What our friends would have your Honours hold is that the purpose of 44(iv) extends not just to simultaneous holdings of office but to any holding of an office of profit under the Crown in the period of a single Parliament. That is how they put it. That would have the consequence if it is right that a person could not resign an office of profit and run at a by-election because they might have held an office of profit under the Crown during the life of Parliament. A seat becomes vacant, they resign their office before nomination and they seek to run. They would be seeking to join the same Parliament where they previously held an office. On our friend’s submission that would not hold so that even though someone has complied with the principles as identified in Sykes, they could not be validly chosen.

It appears, as we understand it, that the rationale for this suggested limit is tied in some way to concepts of responsible government and to the proposition that one could not rely on a parliamentarian to hold the Executive to account if the person who is in Parliament has held an office within the Executive at some point closely proximate to them having obtained election.

In our submission, if that be the purpose of the section it is very hard to see how someone could hold an office of profit under the Crown right up to the day of nomination for a general election, resign, run and, in substance, be in exactly the same position in their relationship, vis-à-vis the Executive, as they would have been if they had resigned during the life of the same Parliament. So the policy rationale that our friends identify, if it be right, should extend far beyond the limited consequence that they have identified.

Finally, their submission appears to be entirely premised on the idea that an office of profit under the Crown must be an office of profit under the Crown in right of the Commonwealth because there is no relationship of responsible government between a State officer and the Commonwealth Parliament but Sykes v Cleary makes it quite plain that an office of profit under the Crown can include – this is page 98 of Sykes:

an office of profit under the Crown in right of a State –

So my friend’s responsible government submissions do not deal at all with those possibilities. All of that really, your Honours, is by way of saying that if it be right to have regard to the purpose of section 44(iv) at all in answering the temporal scope of the entire – all five propositions in paragraph 44 – our friend’s submissions about the particular purpose of 44(iv) go far beyond any previously identified purpose for that section.

KIEFEL CJ: Both of you rely upon the – both you and the amicus rely upon the effect upon certainty on either view. Your submissions would have it that there are two periods of disqualification as I see it, that which operates between nomination and the point at which polling closes under section 44 and then it would operate again under section 45 when someone came to take their seat which leaves the period in between. One of the – I think the first examples that the amicus identifies at paragraph 32 of the written submissions is what if hypothetically in this case Ms Hughes had not resigned which would leave a position where she was disqualified at the point of declaration.

MR DONAGHUE: Yes, so if Ms Hughes – this is where I was going to close, your Honour, if Ms Hughes had not resigned before we got to the point of the Court making the order sought by the Commonwealth that she be duly elected, then, in our submission, the moment that order was – if that order were to be made, the moment it was made she would be disqualified by reason of 45 operating on the part of 44 that refers to “capable of sitting”. So, she was capable of being chosen but she would not be capable of sitting and, therefore, 45 would bite to disqualify her immediately.

That, we submit, would be a compelling reason not to exercise your discretion to make that order because if she has not taken the opportunity to resign and avoid 45 then why declare her elected so as to immediately disqualify her and that would be a case where your Honours would, in our submission, order instead a further special count. But the constitutional scheme deals perfectly coherently with the situation that now confronts your Honours because Ms Hughes was not returned as elected. She had no reason to think that she was a candidate for election still. She had run unsuccessfully.

She had accepted an office for profit under the Crown but resigned that position immediately upon the prospect of her returning to Parliament arose and so never had the simultaneous occupation of the office which is the primary purpose of 44(iv) and there is no suggestion that during the period of choice, traditionally understood, from nomination through to be it close of the polls or return of the writs, there is no suggestion she was disqualified in that period of time. So, there is no reason, in our submission, to treat the prohibition in 44 as biting upon a person who, in the period where she held the office, was neither a candidate for election nor a parliamentarian.

EDELMAN J: How does that submission temporally fit with the drafting history of sections 44 and 45 and, in particular, the second official draft in 1891 which treated those provisions jointly as a single temporal operation, so it was being chosen or of sitting without any possibility of a temporal interruption of the disqualification provisions?

MR DONAGHUE: Your Honour, I will have to go back to look at that draft to answer you.

EDELMAN J: It is just the provisions that are referred to in Re Canavan, in the decision, the major drafting change that was made after the voyage of the Lucinda.

MR DONAGHUE: Obviously, your Honour, the particular situation now confronting Ms Hughes is an unusual one in the sense that while one would not normally have the possibility of a temporal interruption it arises here –let me start that again. With a member of the House of Representatives, there is no possibility of a temporal interruption. One is declared a member and then one takes one’s seat. With the Senate, the position is a little more complicated because a person can be a senator-elect for a period of time between their election to the Senate and them actually taking their seat.

The potential operation of 44 and 45 in relation to senator-elect raises potentially very complicated questions upon which minds have differed over the decades within the Commonwealth and we submit that your Honours should not go to that question unless and until a case arises that requires the point to be decided. But that does at least throw up the possibility of there being some interval where a person is not yet a senator or Member of the House and one needs to ask how these provisions might apply to them.

In the case of someone in the position of Ms Hughes, our submission is once she was not returned as elected as a senator, provisions of the Constitution that refer to the person being a senator or a member cannot properly be read as applying to her because she should have been declared as a senator or member had the counting occurred properly.

Perhaps one obvious way of making that point is, if one did treat Ms Hughes as being a senator, notwithstanding a senator in truth and law, even though she did not know it, that would seem to have the consequence under section 20 of the Constitution that her place would have become vacant after two months because she did fail to attend without the permission of the Senate.

That would obviously be absurd, for her to have lost her place for failing to attend the Senate where not only could she not possibly have known but that there was actually someone else sitting in the seat for which she should have been returned. So as a matter of fact, in the relevant period Ms Nash was regarded as the senator.

The judgment in the reference shows that she was never properly returned to that place, that she was never a senator, but that cannot have the consequence, in our submission, that the law then treats Ms Hughes as having held that seat at any point prior to the point where the Court declares her duly elected and, under section 374(ii), she becomes entitled to take the seat.

So in our submission, 44 and 45 together cannot reasonably be read as operating at any point prior to that declaration but it does have the consequence that we accept, as I think Ms Hughes accepts, that she would

have become disqualified had she not acted promptly as she did to resign her position.

So the gap between the period of choice under 44 and the operation of 45 is, in our submission, an entirely appropriate gap in these circumstances because the focus of 44 is upon controlling members and senators and Ms Hughes was not either of those in the intervening period.

GAGELER J: Mr Solicitor, I may have misunderstood you, but at what point do you say Ms Hughes was chosen by the people?

MR DONAGHUE: She was chosen by the people at the close of the polls on 2 July. That is when the people made their choice that they wanted her as their senator.

GAGELER J: But then the submission is, what, that she would not become a senator until declared?

MR DONAGHUE: Until declared. That is right. She was chosen at that date. All of the senators, in our submission, were chosen at that date, most of them were then declared elected, and then there was the return of the writ. They could take as from that point, having been declared elected and the writ returned, most of them became senators, but Ms Hughes did not because she was not declared at that point. She becomes entitled to take the seat only at the point where 374(ii) entitles her to take the seat, which requires the declaration of the Court first.

That declaration at that point gives effect to a choice made on 2 July – that is still when the choice was made – but, in our submission, otherwise it is difficult to see, if she was a senator, why she was not disqualified by section 20. We submit that that result cannot be countenanced in circumstances where there was an unqualified person in fact occupying the place in the Senate for which she should have been returned. If it please the Court, those are our submissions.

KIEFEL CJ: Yes, thank you, Mr Solicitor.

MR MOSES: Your Honours, if it assists the Court, I should be no more than 20 minutes, I hope, in submissions as a result of the Solicitor-General’s submissions. Your Honours, the critical issue here is what are the bookends to the process of being chosen in section 44(iv)? The process of being chosen, of course, is by a vote of the people.

There are two approaches which the Court has taken. In Sykes v Cleary, as the Solicitor-General has reminded you, at page 99, the bookends of the process are date of nomination and polling day. In Culleton (No 2) 91 ALJR 311 at paragraph 13, the Court opined that the bookends were the date of nomination and the return of the writs of the election to the Governor and in between, of course, is the polling day.

KIEFEL CJ: Would that be understood to be a reference to the effect of writs which were effective were returned? I think that is the view that the amicus took.

MR MOSES: That is our understanding, your Honour. Let me withdraw that, your Honour. If you go to paragraph 53 of Justice Nettle’s decision, his Honour did not think it was necessary to deal with that issue in that particular case because there had been, in effect, no occasion for that to be dealt with, but it was, in effect, a movement from what had been the reasoning in Sykes v Cleary.

Now, we do not need the Court to resolve any inconsistency in the two judgments because it is not relevant here because no matter what dates you look at Ms Hughes was always eligible, whether it be the date of nomination - 2 June 2016, whether it be the polling day - 2 July 2016 or the return of the writs of the election to the Governor on 5 August.

She was, at all relevant times, eligible. And the reference to “electoral process”, more recently by this Court in Canavan of course, talks about the process of being chosen and cites Sykes v Cleary in relation to that issue and, further, it of course refers to the electoral process. But one has to take that to mean the process of being chosen.

What the contentions of the amicus invite this Court to do is to adopt an interpretation of section 44(iv), which really engages in a bit of historic revisionism, namely, that despite being eligible to be chosen to sit on the three relevant occasions that somehow her appointment on 1 July to the Tribunal invalidates the will of the people when they exercised their choice by voting for her as an eligible candidate, on 2 July. And they conflate, as the Solicitor has said, the phrase “electoral process” with the words “being chosen” in section 44(iv), which is of course, prone to lead one to error.

The amicus seeks to extend the line as to when the process to being chosen ends. And, indeed, surprisingly, at paragraph 38 of the submissions of the amicus, he suggests that section 44(iv) applies to a choice by or in accordance with the orders of this Court – that is, a declaration.

Now, whilst the good sense of this Court can never be doubted, that suggestion is fundamentally wrong. It is no part of this Court’s role to choose in relation to the electoral process. All it does is provide the appropriate mechanism by which to determine the voter’s choice, which was already made, on 2 July 2016.

Now, your Honours, there are just two issues that we want to note in terms of process or matters not in issue. We accept that this Court is properly seized of the matter to determine whether Ms Hughes is qualified or not to take her seat in the Senate because of a factual matter that we raised with the Court in relation to her position. It was incumbent upon us, having been served with the summons, to draw to the attention of the Court the relevant factual issue so that the Court did not make the order in a vacuum. And, accordingly, there would be res judicata in relation to the very issue of her qualification to sit in the Senate by reason of being a member of the Tribunal if the Court now proceeds to determine the matter. Now, we do not see it any different from what Justice Gageler said in Culleton (No 1), which I think your Honours may have that reference with you, which is 91 ALJR at paragraph [27].

Although that was in the context of an answer in relation to a referral from the Senate, it equally applies in relation to the declaration that is being sought by the Attorney-General in relation to this matter. This is one of the occasions where it would be just and convenient for the Court to exercise its discretion to make or not make the declaration sought by the Attorney-General if it forms the view that Ms Hughes is qualified or not qualified.

Your Honour, the other preliminary point was that – and there is no issue I think between the three of us – that the membership of the Tribunal was an office of profit under the Crown.

So, your Honours can I just go back to some basics, if I could, on the approach to construction. We adapt Justice Gageler’s observations in Day (No 2) to this case – that is, if your Honours go to paragraph 97 of Day (No 2):

Its blunt and limiting effect on democratic participation tells in favour of an interpretation –

of section 44(iv):

which gives the disqualification set out in s 44(v) the greatest certainty of operation that is consistent with its language and purpose.

And the purpose of section 44(iv) is referred to in Sykes v Cleary in the first full paragraph, at page 96, and is referred to in the report of the Senate Standing Committee on Constitutional and Legal Affairs (1981) at paragraph 5.9, which is item number 4 in our legislation and extrinsic materials list. In essence, we need to remind ourselves that the prohibition exists to ensure:

The exclusion of holders of offices of profit under the Crown from membership of Parliament –

in order that persons who sit within the Parliament are not compromised in the carrying out of their duties by being subject to executive control or hold an office which, in some way, competes with her or his duty to the Parliament. It is through that prism which the text of section 44(iv) is to be construed.

Your Honour the Chief Justice referred to the passage at page 100 in Sykes v Cleary which is the fourth line at the top of the page and, of course, that, in effect, prevents a person nominating and facing a poll who is so employed at the time from taking up their seat to avoid a situation of persons nominating who are employed by the Crown and then not taking up their seat which creates uncertainty for the voter and for the electorate. That is what that is directed to.

Your Honour, if we can go then to the question of the interpretation of the words in section 44(iv). As we have said, undue emphasis should not be placed on the phrase “electoral process” because it is not in section 44(iv). It refers to a Senator being chosen and that needs to be interpreted in a way that closely adheres to its ordinary, natural meaning, the process of being chosen by a vote of the people. That approach to interpretation is consistent with what your Honours in terms have referred to by – in terms of interpretation in Canavan, more recently at paragraph 19. So, electoral process, your Honour, the short point is is not the same as the process of being chosen. An incomplete electoral process does not equal an incomplete choice by the people.

The simple proposition advanced by Ms Hughes embraces the interpretation of Justice Gageler in Day (No 2) in interpreting section 44 and is in conformity with the conclusions of this Court’s reasoning whether it be in Sykes v Cleary at page 99 or the more broader approach in Culleton (No 2) at paragraph 13. In Sykes v Cleary again, your Honours, if we can make it plain, that at page 99 in the second paragraph, the disqualifying characteristics set out there related to the concept of being chosen and in that case the Court observed that:

The people exercise their choice by voting, so that it is the polling day rather the day on which the poll is declared that marks the time when a candidate is chosen by the people.

KIEFEL CJ: You focused on “chosen by the people”, the amicus points out that a person is also chosen under section 15 when a casual vacancy arises. So, we are looking at wider notions of choice than just - - -

MR MOSES: But the critical issue though, your Honour, has to be chosen in the context by a vote of the people. The amicus’s submissions slide into and, as bold as they get to paragraph 38 of their submissions, to suggest that it extends to when to this Court in effect choosing somebody. This Court does not choose anybody. It is the people who choose through that process.

EDELMAN J: That is true but the question is whether this Court is part of the process of being chosen.

MR MOSES: What the Court does, your Honour, in its role here is to deal with, in this particular case, to set the mechanism up for a recount and the recount of what occurred on 2 July once the then Senator Nash was taken out of the picture, was that Ms Hughes was the person who should have been elected on that occasion had that been known. Your Honour is right to say that but it is in the context of what it is that the Court is doing.

In Culleton (No.2), of course, the Court observed the process of being chosen ends on the return of the writs for the election and the return of the writs occurs after the declaration of a poll, which is section 284(3). So no matter which way one looks at it, Ms Hughes was eligible at all relevant times and the amicus’s contention that the electoral process extends from the date of nomination up until some other time extends the reasoning in Sykes v Cleary and Culleton and it is beyond the concept of choosing a candidate, as envisaged by section 44(iv).

So your Honours, whilst the period between nomination and the casting of votes on polling day is part of the electoral process and on the view in Culleton the return of writs of the election, once the votes are cast the choice has been made. Neither a recount, which the Court ordered, nor a special count alters that choice. All that does is determine the true intention of the voters on the day, being 2 July.

For all those reasons, your Honours, we say the Court should make the declaration sought by the Attorney-General and Ms Hughes seeks her costs. Those are the submissions of Ms Hughes. If it please the Court.

KIEFEL CJ: Yes, thank you, Mr Moses. Yes, Mr Kennett.

MR KENNETT: Your Honours, as to the first issue addressed by the Solicitor-General, I propose to be quite brief because there is ultimately no contest between us and the parties as to the appropriateness of the Court dealing with the merits of the issue before you.

We submit that, firstly, as a matter of discretion, it is clearly appropriate that that question be decided now if only for the reason that Ms Hughes is declared elected - and we are all in agreement on this – she cannot because of the effluxion of time since the declaration of the poll be the subject of an electoral petition. So unlike a senator declared elected in the normal way, she would not be subject to her eligibility being challenged by a voter or another candidate.

Any later scrutiny of her eligibility to the extent that it can happen, would depend on political machinations in the Senate. We say that it is undesirable at least for a person to be declared elected with that kind of advantage over other persons who might be declared elected and so, with the matter having been raised before the Court and the necessary evidence being before you, it is manifestly appropriate, we say, to deal with it. As to the other issues that arise under this heading, we do not seek to put the matter any higher than to say there is a real question concerning the preclusive effect of a declaration by this Court on later proceedings.

I was going to submit that the Court ought not seek to decide that question until it crystallises but merely note that there is a question and that in the presence of some doubt about the capacity to go into Ms Hughes’ qualifications later, it is desirable, again with the relevant evidence having been led, to deal with the merits of the matter now. That is as high as we seek to go in the written submissions.

I note that the Attorney seeks to ask your Honours to say something about the issue here and to submit that essentially it is not an issue because to make a declaration that Ms Hughes is duly elected without having canvassed questions of her eligibility, the Attorney says would not create any res judicata in that respect and would not prevent the matter being raised on a subsequent reference.

In relation to that, could I just note a couple of short matters? As I say, we do not go so far as to say the Attorney is wrong. We do say there is an issue and the Court may prefer not to deal with it until it crystallises and in fact the pendency of the Gillespie proceeding, with all its complexity, may indicate a good reason why such a large issue should not be gone into until it crystallises between parties and they have more than a few days to formulate their submissions on it.

The Attorney in paragraph 5 of his outline seeks to place a meaning on a declaration that a person is duly elected and says that that conveys that on the facts then known to the Court, a particular candidate has received sufficient votes and he says it says nothing as to whether or not the candidate is constitutionally qualified.

I suppose there are two ways in which that proposition is problematic. The first of them relates to section 360 of the Electoral Act where the power to make declarations of this kind is found. Your Honours will see paragraph (v) of subsection (1) empowers the Court to declare that a person:

was not duly elected –

and that is a power which, plainly, falls to be exercised if there is a finding being made about the person’s eligibility or constitutional qualifications. Then, (vi) is:

To declare any candidate –

I am sorry, I have got it the wrong way round. Subsection (vi) is to declare – no, I have not got it the wrong way round. I am sorry, your Honours. Paragraph (v) is to declare that the person who was elected is not duly elected which, as I said, may – and often will – involve consideration of their constitutional qualifications. Then, (vi) is the obverse of that – at least, as one reads the statute. To declare somebody duly elected who was not returned as elected. So, the same formulation is used. On the face of it, we say, a declaration by this Court that a person has been duly elected would be taken to be a declaration operating in rem against all the world that the person not only has the sufficient votes but is duly elected in the sense of lawfully and properly elected.

Insofar as it is said that the function of a Court of Disputed Returns reflects the function of the returning officer who, it is accepted has no role in going into the qualifications of candidates, and that was noted in Re Wood to which the Attorney took you, it needs to be borne in mind that the function of the Court also involves undoing what the returning officer did and sometimes undoing it on grounds relating to constitutional qualification.

So that when the Court substitutes its declaration that the person is duly elected, there is a good reason to suppose, we would say, that the Court is then deciding not only that they had the most votes but that the process by which they have arrived at being declared elected is a constitutionally unimpeachable process. That is so, we would say, at least if the potential question as to the qualifications of the person proposed to be declared elected have been raised in an orderly way before the Court. I would just like to mention two cases before I - - -

EDELMAN J: Just before you do, Mr Kennett, do you accept the Attorney’s submission that the power under 360(1)(vi) would extend to failing to declare a person as duly elected where that person had been duly elected but, if that person were subsequently to take a seat as a senator or a member of the House of Representatives, would subsequently be disqualified?

MR KENNETT: We would agree with that proposition, I think. It is hard to see a difference between the question whether the person would be entitled to take the seat and the question whether the person is constitutionally qualified.

EDELMAN J: In a case such as this, but where there perhaps is a greater contest as to whether or not a person has an office of profit under the Crown and where the disqualification may be continuing. In other words, if section 45 were potentially to apply, could the potential application of section 45 have the effect that the Court should refuse to make the declaration under 360(1)(vi) even though, under section 44, on the Attorney’s construction, the person was duly elected, as properly understood, at the close of the poll?

MR KENNETT: In principle we would submit that if the Court has a reference before it about whether there is a vacancy – asking questions as to whether there is a vacancy – the determination of that reference would be limited to, firstly, whether there is a vacancy and, as a consequential matter, who is the candidate who ought to be declared elected. Section 45, on our understanding of it, cuts in at a logically subsequent time, which is when the person has become a member or a senator. I hope that answers your Honour’s question.

I just wanted to mention before I leave this matter Re Day and the Waygood Case. As to Re Day it is not part of our case to say that the Attorney is acting inconsistently. We would suggest that the course that the Attorney took in Re Day was appropriate. The Attorney, as your Honours will no doubt recall, flagged at a very early stage in the proceeding the potential for there to be an issue as to the qualifications of the person who was likely to be declared elected if Senator Day was declared not duly elected. That we say was a completely appropriate course.

As it happened, a party to the reference, Ms McEwen, sought to activate the issue very late in the piece, at the moment when the declaration was about to be made and sought time to put on further evidence about it and the Court decided in light of the very late fashion in which the matter had been sought to be raised that it would not determine it. We do not submit that that was outside the Court’s discretion and that decision was made in the face of an acceptance that there could be an issue of the kind that we have flagged as to as to whether or not declaration was able to be questioned by a later reference.

As to Waygood, which is a case referred to in our written submissions, may I just invite the Court’s attention to, in addition to the passages to which the Attorney took you, what the Chief Justice said at page 367 of the report, where having referred to the provision that renders the Court’s decision final, his Lordship, starting from about point 4, said:

In this view of the case, it would seem that in every instance where the seat is claimed by the petition, and the matter distinctly raised, then, whether the matter is gone into or not, as it is raised and is a point in issue which the judge may determine . . . the decision is equally conclusive whether the evidence is given or not -

and then goes on, down to about point 8, referring to a practice in the House of Commons. The strict ratio of Waygood may be said to be as the Attorney admits but there are suggestions in that case and we completely accept of course in that particular statutory context, that the finality of the declaration may have gone further than that, or at least the circumstances in which the declaration or purposes for which it could be final may go further than that. Your Honours, those are the only things I wanted to say about the preliminary question of whether the Court should go into the merits of Ms Hughes’s eligibility.

GAGELER J: Mr Kennett, do you accept in relation to that that that is a question within the discretion of the Court or is “discretion” an inappropriate description?

MR KENNETT: It is discretionary on the face of the Electoral Act - section 361, I think it is. It is doubtless a discretion to be exercised judicially and one in which there may practically be little room for a choice to be made, depending on the circumstances. If the Court is asked to make a declaration which, upon material known to the Court may just not be right, then that would suggest quite strongly a manner in which the discretion ought be exercised in a case like this.

Turning to the matters of substance, we are all agreed at the Bar table that section 44 refers to a process. It is useful to step back and consider for a moment in what guise and for what purpose it refers to a process. We have attempted to formulate this in proposition 5 in our outline.

What the section does in its terms is to deny to certain persons the ability to be chosen as, relevantly here, a senator, and we say that the reference to being chosen refers to the constitutionally mandated process of choosing senators and it fixes upon the eligibility of a person or the capacity of a person to be a candidate in that process.

It is useful to note that, when section 44 says a person is not able to be chosen, it is not making a statement about facts or anything of that sort; it is imposing a prescription as to the legal efficacy of a process which purports to choose a person who is in fact disqualified.

From there we move to say the constitutionally mandated process of choosing, which is what section 44 refers to, ought not be conflated with the particular method of choice that is used, nor reduced to a focus on particular steps in that method – for example, a focus on the point at which one says the people have made their choice by voting.

That kind of focus has a number of difficulties. One is that there may, consistently with section 7 of the Constitution, not be a particular polling day. One can envisage, in times gone by, mobile polling booths in remote areas of Australia. One can envisage in the present day internet voting or a postal survey. None of those things would necessarily be inconsistent with a choice of senators by the people. So there may not be a distinct polling day and, as section 220 of the Act indicates – and the Attorney took you to this – it may not be possible to point to a particular moment when voting stops, because the Act allows for people who are already in the queue to get to the front of the queue at 6.00 pm and vote.

So there is some instability in the notion that everything focuses on polling day or that everything focuses on the point at which the people make their choice. That is not necessarily a fundamental answer or reason why the construction advanced by those on the other side of the Bar table cannot be adopted. But it is a reason to pause, we say, before adopting it.

It is also, we would suggest, hard to say in an ordinary or factual sense that the people of New South Wales in this election chose Ms Hughes to be their senator. Manifestly, they chose, to the extent that this is the test, another person. The circumstance in which that other person has been found to be ineligible requires the ballot papers to be gone back to, to seek to elicit, as it were, an alternative choice from them. But we are, by this stage, a couple of steps away from giving effect to any conscious choice of a person by the electors.

BELL J: How does that submission sit with the analysis in Wood, accepted in Sykes, in relation to the appropriate consequential order in a case of this kind and which has regard to whether a special count will give effect to what is described as the true legal intent of the voters casting their ballot? In this instance one might think, rather like Wood, one could say that under the group system of voting there is a very high degree of probability that the voter who voted for Ms Nash would have had a particular intent and that might be reflected in the distribution of preferences and so forth.

MR KENNETT: Yes. The process amounts to an ascertainment of, as it were, a constructive choice by the electors. Supposing Ms Nash not to have been in the poll one asks what would the outcome have been and rather than asking everybody to vote again one does the recount.

BELL J: Indeed, but one is on this analysis interested in the true legal intent of the voters as distinct from looking at the process of choosing divorced from consideration of the choices made by the electors on the day the poll – the votes are cast.

MR KENNETT: One seeks to identify what is described as the true legal intent of the voters which means imposing a construction on the voters’ choices based on a particular fiction, I suppose, and that can be – that imposition of a constructive intention can be reconciled with the requirement for choice by the people, I do not suggest that there is a problem with that.

That is the method by which, so the Court has held, one responds to the situation of a person having been found not to be – the person declared elected having been found not to be eligible which is a different question, we would submit, from how one approaches – which is a different from the qualifications of the next person in line.

What I am seeking to submit is that in approaching that question, it is a mistake and I will amplify this shortly by reference to the text and the authorities but it is a mistake, we say, to look at the existing legislative process and assume that that is the constitutional referent and it is also a mistake we seek to submit to treat the reference to “chosen” as bounded by the particular method of choice and consisting only of the exercise of choice by the people in their ballot boxes.

I wanted also to mention in connection with this, another aspect of instability in the instruction propounded by our friends is referred to at paragraph 39 of our written submissions and that is that there may be occasions during the count where the Electoral Officer is called on to make – this is subsequent to the voting – where the Electoral Officer is called on to make choices which could potentially influence the outcome.

That is an aspect of our current system. It resides in section 273 of the Electoral Act which describes in – or provides in very great detail for the conduct of the count that, for example, if one goes to subsection – if your Honours have the Act – if you go to section 273(17) there is a circumstance there where:

if those candidates have an equal number of votes the Australian Electoral Officer for the State shall have a casting vote –

that person being someone who:

shall not otherwise vote at the election.

There is something similar in subsection (22) where:

2 or more candidates have equal surpluses –

as a last resort – at the end of the subsection – the Electoral Officer:

shall determine the order in which the surpluses shall be dealt with.

The other example, which was engaged in the present case, is subsection (31) – paragraph (b) refers to a situation where:

if 2 or more continuing candidates have the same number of votes –

and the ultimate resolution of that – all else having failed – at the end of the paragraph is for:

the Australian Electoral Officer for the State shall determine the order of standing of those candidates –

That provision, as it happens, was engaged in the present case – as your Honours can see from the affidavit of Mr Austin – paragraph 9 at court book, page 42. So, again, there are problems of definitiveness about lacing the end of the constitutional process at the end of the voting that may not necessarily be the last stage of the game at which choices are made.

In paragraph b of proposition 5, I have sought to try to refine a bit the statements about the pendency of the process because it may not be useful to attempt to say in a global sense the process of choosing starts on day A and finishes on day B.

Section 44, as I have indicated, is a prescription about candidates or about the efficacy of a process if it produces a candidate who has particular allegiances, interests or matters of that sort. It falls to be applied in a circumstance where a candidate has been declared or is proposed to be declared elected. When one brings the matter home to that kind of circumstance, it may be better to understand the pendency of the process in relation to the particular candidate.

Paragraph b of our proposition 5 puts it in the general way that we put it in the written submissions. Paragraph c seeks to bring home to the instant case or to the individual case and say that, so far as one needs to look at a person whose election is under challenge – that is to say, someone who has been declared elected and is challenged by petition, for example, or somebody like Ms Hughes, who is proposed to be declared elected but as to whom there is an issue – the process is properly seen as beginning when that person nominates and continuing until that person is declared elected, if they are declared elected.

The constitutional process, as it relates to Ms Hughes, is still happening, because there is still a step to be taken, if it is taken, before she emerges from the process as a person declared elected and entitled to sit.

GAGELER J: Mr Kennett, that is a submission that the process of being chosen referred to in section 44 is a person-specific process, is it? You look at the particular person and there may be different periods applicable to different people?

MR KENNETT: There is a process which falls to be identified by reference to the particular person, which may have the consequence your Honour suggests. For example, I think it is safe to say the process is over so far as Ms Nash is concerned. In principle, it is not over in relation to any other candidate who could, as a consequence of special counts, become the person declared elected.

In paragraph d of proposition 5 I have noted the alternative approach to this, which appears in paragraph 52 of our written submissions. The other way of looking at this is that the process might have come to an end at some earlier time but it is revived when the possible declaration of Ms Hughes comes into view as a consequence of the existence of the Court of Disputed Returns process. I do not propose to say any more about that than is in the written submissions.

I then wanted to turn to the reasons why we say that what we have said in proposition 5 is right. There are textual considerations that support this, the first of which is the proposition that I have already put which is that the constitutionally mandated process ought not be conflated with the particular instances or emanations of the process.

We also rely, as the Chief Justice has noted, on section 15, which provides for casual vacancies to be filled by the Parliament of the relevant State. Section 15 also uses the terminology of “choosing”. It says that it is the Parliament that:

shall choose a person to hold the place -

and in contrast potentially with that:

But if the Parliament of the State is not in session . . . the Governor of the State . . . may appoint a person -

So, different language is used to describe the temporary appointment by the Governor and the choosing of a senator by the Parliament of the State. That choice, we submit, is an instance of a person being chosen for the purposes of section 44. So that, plainly enough, if the Parliament of the State purported to choose somebody who was a foreign citizen, that person, like anyone else chosen as a senator, would need to run the gauntlet of section 44. That, we say, supports our proposition that section 44 should not be approached with overmuch emphasis on the act of choice by the people on polling day or around polling day.

A similar consideration I just recalled is an example that your Honour Justice Gageler put to the Solicitor-General where there is only one candidate for a House of Representatives seat and that person is declared elected at the close of nominations. There is no polling – there is no choice by the people in the sense of a polling day in that example and yet we would submit a person so elected would also have to face section 44 in the event that they were a foreign citizen or held an office of profit or something of that sort. So, again, section 44 needs to be read so as to encompass the various methods by which a person may be selected.

KIEFEL CJ: Is a person in that position taken to be chosen by the act of nomination?

MR KENNETT: The process to which section 44 refers in that case would, leaving aside courts of disputed returns, be understood as extending probably only from the lodging of the nomination to the close of nominations, at which point they would be declared elected.

KIEFEL CJ: Yes.

MR KENNETT: I also wanted to just canvass for a moment the interaction with section 45 and take a counterfactual situation of somebody in Ms Hughes’ situation who does not resign. On our friend’s construction, a person who has been appointed to the AAT or some other office after polling day is not therefore incapable of being chosen under section 44 and if one assumes that there is a reference of the kind that we have had in this case and that person is proposed to be declared elected at the end of the Court of Disputed Returns process, on our friend’s construction that person is entitled to be declared elected even if they have not resigned because the disqualification would bite, if at all, back on polling day before the person took up the office.

That raises some complexity as to the interaction of section 44 and section 45 in our submission. The person would, as we read section 44, not be incapable of being chosen, therefore, on the face of it, capable of being declared elected. The person would, however, be incapable of sitting because of the closing words of the section and further would not, on our construction, be caught by section 45 because he or she would not have become subject to any relevant disability while a senator.

The resolution of that would seem to be section 20 because eventually being not entitled to sit, the Senator who was unable to sit would eventually lose their seat because of section 20 by reason of not having attended but that is a strange circumstance, we would submit, that follows as a result of our learned friend’s construction and is a reason to prefer a construction that does not lead to such difficulties.

KIEFEL CJ: Why do you say it is odd if the person is incapable of sitting under section 44? Why does that not deal with the exigency?

MR KENNETT: We say it would be a strange result if a person was capable of being chosen but not capable of sitting.

KIEFEL CJ: Of sitting.

BELL J: On your preferred construction, the process of being chosen has as its terminus the determination of a person who is not incapable of sitting being chosen, so that on this analysis at the point of the commencement of the process of nomination a person may not be subject to any disqualification under 44 and at the point of terminus they may not be under any disqualification under section 44, but they are disqualified because for some period no matter how short during the process they were but no longer are subject to a disability.

MR KENNETT: Yes.

BELL J: I suppose it might be said that just as you point to the strange consequence of the interaction of section 44 and section 20 to achieve a result that section 45 does not in the circumstance posited, so equally there is something a little odd about the concept that a candidate is disqualified because for a period, no matter how brief, in the process they answered one of the disqualifying conditions but do not at the point of nomination or at the conclusion of the process.

MR KENNETT: Your Honour, the oddness of that depends on how one understands the purposes of the disqualifications. That is something - - -

BELL J: That is the matter I next wanted to raise with you because you point to considerations of the integrity of the system of responsible government as informing your construction, but that does overlook consideration, going back to the true legal intent of the voters, of the deprivation of a person who was qualified when the vote was cast and who believing that he or she was not elected subsequently takes an office under the Crown.

MR KENNETT: It may be useful if I go now to what I was intending to say about matters of constitutional structure and purpose, which can be found starting at paragraph 40 of our written submissions. The point where I would like to begin with that was to say that each - and we noted the Solicitor-General’s observation that the words we are seeking to construe here come at the end of the section and relate to all of the disabilities contained in the particular paragraph.

We would say that each of those paragraphs embodies a judgment that a class of persons ought not be permitted to serve in the Parliament and it is not hard to see in most, if not all, of those cases the policy or value that underlays that judgment. So paragraphs (i), (iv) and (v), for example, appear to be directed at the avoidance of divided loyalties - if I can put it in that shorthand way - and possibly also the avoidance of perceived divided loyalties.

Those disqualifications are erected ultimately as a matter of concern for the proper functioning of the Parliament and the Parliament’s capacity in a system of representative and responsible government to oversee properly the activities of the Executive.

In each instance, the problem sought to be addressed exists, albeit in an attenuated way, even if the person has shed the relevant status or interest and we seek to say in the written submissions why that can be seen to be so in relation to paragraph (iv) of the section. If I could just go briefly to that part of the written submissions, we identify some underlying principles in paragraphs 40 and 41, and then in 42 we submit that paragraph (iv) is directed to eliminating:

the “principal mischief” of executive influence over Parliament -

and then we say there are:

risks to responsible government, both real and perceived, in permitting the holder of an office of profit under the Crown to shed that office and enter the very Parliament –

and then we seek to expand on that in the following paragraphs. So, at 43 we discuss the problem of a person who has just resigned from an office of profit and then needs to come into Parliament and “question and criticise” the operations of the government who he or she may recently have been serving. Paragraph 44 we refer to the sections and then I will not read the rest of it to your Honours but we note in paragraph 47 that these considerations that we have rehearsed, firstly:

point to the preferred construction –

and secondly:

answer arguments that might be put to the effect that it would be a harsh outcome for a person –

It may be harsh but there are matters of constitutional principle involved.

BELL J: Putting to one side the harsh outcome for the person, looking at the voters and looking at the idea that this Court has embraced, that something known as the true legal intent of their vote can be discerned in a system of preferential voting, what, if anything, is your answer to the submission that it is odd to deprive the effect of the vote with respect to a candidate who was qualified on the day the vote was made?

MR KENNETT: The first step of our answer is that there is a risk to responsible government. Part of what is within the contemplation of section 44 - if a person sheds an office of profit and the next day or the next week is in Parliament with a duty to hold the Executive to account, we accept that that is of a much lower order than the risk of simultaneous offices but we submit that there is a risk to responsible government in that occurring.

Section 44, on our construction, encompasses that in its concern with the functioning of Parliament. That concern, we accept, needs to be balanced against the constitutional imperative of democratic participation. That balance is achieved – and this relates to all of the paragraphs of section 44 – in part by reading the individual paragraphs to the extent possible so that they do not create irremediable disqualifications. Your Honour has heard about that in the earlier argument on this reference.

KIEFEL CJ: That might be a convenient time, Mr Kennett. We will adjourn until 2.15.

AT 12.47 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.15 PM:

KIEFEL CJ: Yes, Mr Kennett.

MR KENNETT: Your Honours, before lunch I had made the submission that the values expressed in section 44 all go to matters in relation to which there is a level of risk or concern in relation to a person who has been under the disqualification, albeit at a lesser level, than that which applies to a person currently under the disqualification. I have referred your Honours to the part of our written submissions where we develop that in relation to paragraph (iv).

I then noted that the concern with the proper functioning of Parliament which is there embodied has to be balanced against the competing constitutional imperative of allowing full participation in the democratic process. That balance is achieved, firstly, by the construction of the individual paragraphs, where possible, so that they do not erect irremediable disqualifications.

The second way in which that balance is achieved, in our submission, is by the important role of the informed choice of the people which operates, as it were, to cleanse one of the potential concerns that might arise from being a recently resigned public servant or somebody who has only recently renounced foreign citizenship or something of that kind.

The notion that I am seeking to suggest to your Honours is that one can shed the disqualifying allegiance or interest or association and submit oneself for election on that basis and thereby pass through the test of section 44 and take up a seat. That happens most obviously in a general election. It could happen in a by-election for the House of Representatives. I say that as a qualification on what might otherwise be a rather absolute position that we put in paragraph 42 of our written submissions.

It could conceivably, although your Honours do not need to decide this, occur through the selection process in a State Parliament under section 15 but the point is, we say, where the competing imperatives find their balance is that it is necessary for a candidate to go through that electoral process after shedding the relevant disqualification so that the people can choose him or her or not in that light.

The process would be compromised if a person presented him or herself for election without any kind of taint of conflicting interests or allegiances but then by the time he or she was declared elected and took up the seat it was a different person, in effect, somebody who had been a public servant or someone who had been a foreign citizen or something of that kind.

The person who submits him or herself for election needs to be, so far as the paragraphs of section 44 are concerned, the same person that takes up the seat. That is why we say, as a matter of structure and purpose, the construction for which we contend, which might seem on its face to be a far-reaching one, is consistent with the purposes of section 44 and with the system of representative government under the Constitution.

Before I leave this I should note, in relation to what the Attorney says at paragraph 50 of his written submissions, that the construction for which we contend gives the choice to the unsuccessful candidate - I think the example is postulated there – who wishes to serve the Commonwealth in some other capacity. That person has a choice, we would say. The choice is to take up that appointment and wave goodbye to any residual prospect of being elected to the Parliament as a result of the election just past, or hold on to that hope, refuse the appointment and see what happens. But, in any case, at the next electoral process there is no impediment to him or her resigning before it becomes necessary to nominate and seeking election in the same way as any other citizen.

Your Honours, that is what I wanted to say about paragraph 6c of my outline. May I come back to 6b, which I skipped and go quite quickly to the cases?

KIEFEL CJ: Yes.

MR KENNETT: Can I take your Honours first to Sykes? It is necessary to read this case a little bit more widely than was done this morning. Could I take your Honours to page 99 please? In the first paragraph on that page, you will see the positions of the parties outlined:

The petitioner submits that the word “chosen” extends to incorporate all the procedural steps necessarily involving the candidate in the electoral process . . . including the step of nomination. On the other hand, the first respondent and the Attorney-General –

focused on the declaration of the poll. Then in the next paragraph, the Court says that:

Whether those words refer to the act or choice or the process of being chosen is a question to be determined.

Now, it is going to be determined later in the reasons, and then their Honours say:

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 -

because if one is looking for the act of choice then, as their Honours say, the act would be the voting and not the subsequent declaration of the poll. Then that is elaborated upon. Over on page 100, in the first full paragraph, their Honours say:

Reflection on these considerations persuades us that the words “shall be incapable of being chosen” refer to the process of being chosen –

Just pausing there, their Honours have thereby rejected the analysis postulated on the previous page which focuses on the act. The case does not hold that polling day has any particular significance as the beginning or the end of the process.

KIEFEL CJ: So, it is a rejection of a point in time approach?

MR KENNETT: Yes, your Honour. In our submission, it is. So, the process of which nomination is essential part. Then there is a reference to section 43 and then again the words “shall be incapable” must refer to the process of being chosen.

EDELMAN J: So, the whole of the passage on page 99, that whole paragraph that begins with “However, this interpretation must be rejected” is all concerned with the circumstance postulated that if the words did refer to the act rather than the process, then the following consequences would follow?

MR KENNETT: Yes. So we would submit that Sykes provides no support for an analysis that gives particular prominence to polling day. Sykes speaks of a process and further Sykes describes nomination as an essential part of the process.

I would wish to say two things briefly about that. One is that their Honours refer to nomination. They do not refer to the opening or the closing of nominations but to nominations seemingly the act of nominating and that is of interest in relation to the proposition I put earlier today that the application of section 44 needs to be brought home to the particular candidate and one needs to identify for that candidate what is the process that has happened which is impugned. The process from the candidate’s point of view begins when he or she puts in the nomination form and not necessarily on the opening or the closing day of nominations.

Now, the other thing which I would seek to stress about the inclusion of nomination in the process is that this is an exercise of construing a constitutional phrase and not an exercise of pragmatically selecting the preferable regime.

GAGELER J: Mr Kennett, this might not matter for present purposes but this view of section 44 that it produces a period of choice tailored to the individual candidate is not the only way of reading section 44. Now, on one view, what the Court was referring to in Sykes v Cleary is what the Electoral Act refers to as the hour of nomination, as I understand it, and I may not be across the detail of the provisions.

There is a very precise point in time which I think is 12 noon on the date of nomination as set in the writ that everyone can look at and say, well, that is the hour of nomination. If you put your nomination form in in advance of that you can withdraw it up to the hour of nomination and then whatever nomination forms have been received by that time then get assessed to determine who are the nominated candidates. But there is a very precise point and it is the same point for everyone.

MR KENNETT: I see.

GAGELER J: I think.

MR KENNETT: I cannot say your Honour is wrong.

GAGELER J: Then you have a very precise declaration at the other end if that is the endpoint but they are very clear days and they are the same day for everyone.

MR KENNETT: That may be why the Court refers to nomination without elaboration in Sykes. I have not looked it up so I cannot help with that. But the other point that we would seek to make is that a process is identified which stretches back to nomination and that was the important matter in Sykes. By including nomination that was sufficient to decide the case.

Had the polling day been critical, the result may well have been the same, but the reasoning would no doubt have been different because there would have been no reason to talk about nomination. It is perhaps worth noting that in Free v Kelly [1996] HCA 42; 185 CLR 296, which is on Ms Hughes’s list of authorities, at page 300 of the report one sees that Ms Kelly had lodged a nomination on 2 February. At that time she was member of the Royal Australian Air Force and she had been transferred to the reserve list approximately 15 days later but before polling took place. Over on page 301 the Chief Justice, in the first paragraph, said that she was:

an officer of the RAAF at the time of her nomination. That is the relevant time for determining whether a person is incapable –

If everything had hinged on the moment of choice then that case would have had a different outcome because by the time of choice she was no longer disqualified. Can I then mention In re Wood. Your Honours, I think, are aware of the relevant passages. On page 164 of the report of that case there is a reference to Vardon v O’Loghlin, where the Court held:

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

So a failure of choice. The analytical consequence of ineligibility was a failure to choose. Then a little bit further down the page their Honours, in the last paragraph, said:

A Senate election is not completed when an unqualified candidate is returned as elected. The return does not meet the exigency of the writ –

That may be a conclusion expressed at a statutory level but it is nevertheless one which we say is apt to describe the circumstance for present purposes. With an unqualified candidate – i.e., Ms Nash – having been returned as elected, the Senate election is not complete and thus the process of constitutionally required choice, we would say, is not complete. There are similar observations in a similar vein on page 168. The penultimate paragraph states:

The place of Senator Wood has not become vacant by reason of any supervening event. Rather, the place has not been filled in the eye of the law for he lacked the qualifications –

GAGELER J: It is not just statutory, it is also for the purposes of section 15 of the Constitution – there is no casual vacancy.

MR KENNETT: Yes, that is so. In Culleton – your Honours have been to paragraph [13]. This is Re Culleton (No 2) 91 ALJR. Paragraph [13] describes the holding in Sykes and says that the words:

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

There are two things to say about that. One is – maybe three things. One is that the Court goes on to say there is no question in that case:

as to the temporal operation of s 44(ii).

So it does not actually decide anything directly determinative of the present case. The second thing to say is that their Honours, in that observation, conceived of the process to which section 44 refers as the entire constitutional process of choosing somebody – in this case, by election – with a beginning at the point of nomination and an end when the successful candidate is declared elected, which is consistent with the analysis we propound.

Thirdly – as your Honour the Chief Justice suggested to the Solicitor-General – it is no great stretch to read reference to the return of the writs as a reference to a legally effective or valid return of the writs. That would encompass, quite readily, a situation such as the present where writs have been returned but they are undone by a finding of the Court of Disputed Returns and the Court then substitutes its own declaration of who is elected. So, the authorities – such as they are – we say, support the construction for which we contend.

It remains only to bring those matters home to the present case. I do not think I need to say anything about proposition 7. We have dealt with it in the written submissions but it is agreed by all parties here that the office that Ms Hughes held was an office of profit under the Crown and on the construction which we propound – or, indeed, the alternative approach – she held that office during the period in which the process of choice was under way. So, it is our submission that Ms Hughes, therefore, is not qualified to be elected and the order sought by the Attorney ought not be made. Those are our submissions, if the Court pleases.

KIEFEL CJ: Thank you, Mr Kennett. Yes, Mr Solicitor.

MR DONAGHUE: Your Honours, can I start with a brief reference to the process point about the role of the Court, just to highlight what appears not to be disputed. As we understood the oral submissions of the amicus, they accepted, one, that the question of qualification arises as an issue in resolving a reference from the Senate as a matter that goes to the discretion of the Court as to whether or not to make an order under section 360(1)(vi) and in answer to a question from your Honour Justice Edelman, as we understood it, they accepted as a matter of power, that the Court could order duly elected a person who may not be qualified under section 44.

In our submission, those two submissions are correct because, as we outlined in-chief, a declaration that someone is duly elected does not carry an implicit conclusion as to the qualifications of the person who is the subject of that declaration, so that a res judicata arises in relation to a qualification question only if the issue is distinctly raised and then determined by the Court in deciding in what order to make.

If that happens, then a res judicata will arise and the qualification issue will be resolved. But if it does not happen, if it has not been distinctly raised and determined, then if the order that due election is taken to say anything about qualifications, the consequence of that would be that this Court could fill a vacancy in the Senate only if it first conducted, in effect, an audit of the qualifications of the candidate against all of the qualification criteria in section 44 and that is, we submit, an obviously institutionally inappropriate role for the Court to be taking on, and also one that it is practically difficult to see how the Court could do in the absence of parties raising and litigating the relevant questions.

What that means, in practice, in our submission, is that whether having ordered a special count and having identified the candidate who should be returned for the vacant place, whether the Court goes into the question of qualification depends on matters such as first and most importantly whether an issue of qualifications is raised at all.

If it is, the Court’s view, or the strength of the point, is it a serious question or is it more trivial. The interests of the person seeking to raise the point, timing issues such as, for example, how extensive – how long it will take to make the factual inquiries necessary to resolve the point when the matter could be heard, matters of that kind and all of those factors affect the discretion of the Court and might, in an appropriate case, lead the Court to conclude that it should make the declaration knowing that it says nothing about the qualification question and, therefore, leaving that question to be resolved in the ordinary way that it would be resolved for all of the other senators who are declared duly elected without anyone having assessed their qualification before they are able to take their seat in the Senate. That is all I want to say about the process point.

On the issue as to the interface between section 44 and 45, I need, I think, to revisit one submission that I made this morning. I made a submission to the effect that if Ms Hughes had not resigned her place then that would demonstrate this as an appropriate case within which the Court might choose to exercise its discretion not to declare her duly elected. I withdraw that submission for this reason; that if it be the case that Ms Hughes was not disqualified during the period of choice to which section 44 refers, she was duly elected. She was validly chosen by the people at that date. The problem is a problem that arises after the period of choice and that is a problem that means she would be incapable of sitting under section 44 and if she attempted to sit - that section 45 would then operate to vacate her place.

But, it would not, in our submission, be appropriate for the Court to decline to make the declaration of due election for this reason. If Ms Hughes was declared duly elected and then lost her seat under section 45, that would be a casual vacancy and so the position would be filled under section 15. Whereas, if your Honours exercised your discretion not to declare her duly elected and ordered a recount, then that would fill the place by reference to the choice of the people as at the date of the election, rather than through the mechanism under the special count.

So if Ms Hughes was validly chosen by the people on 2 July, the appropriate order, in our submission, would be that she be declared elected and that if she had not resigned, her place would become vacant and would be filled as a casual vacancy. So, the purpose of section 44 would still be fulfilled in that she would never simultaneously hold the incompatible offices.

EDELMAN J: That was the purpose of my question to Mr Kennett but the difficulty is the section 45 issue is not before us, is it?

MR DONAGHUE: No, but she did resign so the hypothesis for this question, in my submission, does not arise but that is how it would have played out, in our submission, had she not resigned.

EDELMAN J: But one could have a circumstance that is different from this case where the question, for example, is more ambiguous, that someone had not resigned.

MR DONAGHUE: Yes.

EDELMAN J: Then there would have to be a declaration that they are duly elected even though the Court is of the opinion that immediately upon sitting, they would be disqualified by section 45 - - -

MR DONAGHUE: Yes.

EDELMAN J: - - - but that person may not hold that view and may then proceed to sit.

MR DONAGHUE: And then it would be a question for the Senate as to whether the Senate referred the question of qualification to the Court to resolve, which one would expect that it would do if the issue was seriously raised.

GAGELER J: The submission has some difficulty being reconciled with the structure of section 45. On just a natural reading of section 45(i), you start with a senator, the senator then becomes subject to a disability mentioned in section 44 and then the seat becomes vacant. You start the other way around. You have got a disability and then the person becomes a senator, and then the seat becomes vacant.

MR DONAGHUE: In my submission, your Honour, the way one should read it is that if the person acquires the office of profit under the Crown prior to taking their seat then they become subject to the disability at the same moment that they become a senator because the relevant disability is not that they were incapable of being chosen but that they are incapable of sitting. One can only be incapable of sitting from the time when one would otherwise be capable of sitting, which is the moment one becomes a senator. At the point of being entitled to take a seat, one becomes a senator, becomes subject to the disability and is disqualified by section 45(i). That is how we submit that it works.

KEANE J: Mr Solicitor, if someone who is chosen by the people on polling day but before the writs are returned becomes bankrupt, surely that person is not qualified to be chosen. It is section 44 that is the problem. That person can never become a senator. If the returning officer does not know about the bankruptcy, that is a problem to be addressed on a reference under section 44.

MR DONAGHUE: Your Honour, on that scenario, section 44 certainly prevents the person from being a senator but, on our submission, it would prevent them because it would prevent them from sitting, not because it would prevent them from being chosen. The ultimate outcome would be the same, they could never take their seat, but if one gives effect to what six members of the Court said in Sykes that the declaration of poll and the return of the writ are steps that happen to announce the choice rather than constitute part of the choice themselves then we submit it would fall into the sitting limb rather than the chosen limb.

If we are wrong about that and the process of choice extends to the return of the writ then it would follow as your Honour puts to me, that the person could not be chosen, but our submission is that when one looks at constitutional provisions including, in particular, section 7, section 24, one sees a direct link between the concept of choice and the concept of the vote itself. By that, we understand the Constitution to be referring to the act of the person rather than the process that follows in ascertaining what that person said in their vote.

BELL J: How does that sit comfortably with your acceptance in paragraph 11(a) of your submissions that the process of being chosen commences with nomination and concludes at the end of polling day? You rely heavily on that line in Sykes for the notion of the act of choice which would seem to suggest that the only relevant date for a consideration of eligibility would be the date on which the elector makes the choice and yet you acknowledge nomination.

MR DONAGHUE: Your Honour, if we have given that impression, that is unintentional. We focus on the active choice as marking the endpoint of a process of choice because, in our submission, one can say – without in any way straining language – that from the point when people nominate for election, the electorate then is engaging in the deliberative process of deciding which of the persons who have nominated, the electors want to choose. So, that deliberative process extends from people putting themselves forward to the point when the vote is cast.

Our submission is, not that the active choice is the only relevant thing and that one cannot look at the process, but that a process of choice cannot logically continue after the choice has been made. So, that if it is correct – as their Honours said in Sykes – that the process is made at the end of the polling day – sorry, that the choice is made at the end of the polling day – our submission is that the process of choice must end on the polling day. That is why I focus on the act – not to supplant the process but to mark the endpoint of the process.

BELL J: You acknowledge a lengthier election process – this is in your paragraph 11(b) – what you do is you distinguish the process of being chosen from the broader concept of the election process.

MR DONAGHUE: Absolutely. The election process is longer at the start and longer at the end - - -

BELL J: Yes.

MR DONAGHUE: - - - than the act of choice because there is a necessary process to start the election before people nominate and, more obviously, there is a complex and detailed prescriptive regime for ascertaining the legal effect of the votes that have been cast which, obviously, follows the casting of those votes. But, in our submission – picking up the language of Sykes – is declaring the choice made, rather than part of the choice itself.

KEANE J: This sounds a little inconsistent with Murphy where the argument was that the choice is all about what happens on polling day and anything that interferes with maximising that choice is contrary to sections 7 and 24 and the conclusion of the Court was that Parliament had made provision for the process - in addition to the bits about writs and so forth that are in the Constitution itself, Parliament had made provision elaborating the structure of the choice to facilitate the choice made by the people and referred to the circumstances of scrutiny as an aspect of provision for choice by the people.

MR DONAGHUE: Your Honour, we absolutely embrace the proposition that the electoral process in that way extends more widely than the operation of section 44 and certainly extends well before, so the elaborate provisions made in the Electoral Act for the process leading up to the poll, in our submission, are entirely consistent with our submissions and with what was said in Sykes because we do not deny that the “incapable of chosen” language in 44 does refer to that process.

Whether or not one includes the scrutiny in the process, in my submission, depends on why the question is being asked. It is obviously part of the electoral process for a great many purposes, so too with the return of the writs; hence, the way the Court described it in Culleton but, our submission is that in the specific context of section 44 of the Constitution, when confronted with a submission to the effect that the process of choice referred to the declaration of the poll, this Court said it does not because the process of choice is over before the declaration of the poll.

So, in our submission, in order for the amicus to succeed, he needs to persuade your Honours that what six members of the Court said in Sykes in that respect was wrong and, in my submission, there is no reason to depart from what their Honours said in that case. When they are very specifically directing their attention to whether or not the process of choice included the declaration of the poll, they said, no, it does not; the choice has already been made, that is just recording it.

So, in my submission, to give section 44 that operation – temporal operation as a subset of the entire electoral process is the precise thing that their Honours did in Sykes and all we are asking your Honours to do is to give effect to that same – that same view.

In relation to casual vacancies, your Honours, we accept, of course, that when section 44 says “incapable of being chosen”, it means chosen by any of the ways that the Constitution permits a member or senator to be chosen and that that, of course, includes section 15. So we do not for a moment suggest that a senator chosen to fill a casual vacancy could sit in circumstances inconsistent with section 44.

But it is, we submit, self-evident that the process of choice by which a person fills a casual vacancy is not the same as the process of choice by which most members and senators are selected by the direct choice of the people because section 15 expressly gives that choice to the Houses of Parliament of a State. It is just a manifestly different method of choice.

So, in our submission, section 15 does not tell the Court anything helpful in terms of identifying the process of choice by which a senator is chosen at a normal election. It just recognises that there are different pathways by which that choice might be made. We think the use that the amicus seeks to make of this is then to say because there are different methods, one method is a proceeding in the Court of Disputed Returns so as to bring the process of choice back to life when this Court is seized of a particular matter.

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