Re Nash [2017] HCATrans 241 (20 November 2017)

Last Updated: 21 November 2017

[2017] HCATrans 241

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

GAGELER J

TRANSCRIPT OF PROCEEDINGS

FROM SYDNEY BY VIDEO LINK TO MELBOURNE

ON MONDAY, 20 NOVEMBER 2017, AT 2.14 PM

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 friend, MR M.P. COSTELLO, for the Commonwealth Attorney-General. (instructed by Australian Government Solicitor)

HIS HONOUR: Thank you, Mr Solicitor.

MR DONAGHUE: Your Honour, I move on the summons filed on 17 November 2017 and read the affidavit of Andrew Kevin Gately, affirmed on 17 November 2017 in support of that summons.

HIS HONOUR: Thank you, Mr Solicitor. When do you expect that the further recount could occur?

MR DONAGHUE: On Wednesday at 10.00 am, your Honour.

HIS HONOUR: I see. Would you propose to prepare a further notice of motion seeking the final order of a declaration in this matter?

MR DONAGHUE: Yes, your Honour, but I need to qualify or explain that answer as to the timing within which we would do that. The summons was filed last Friday on the basis that the place for which Ms Nash was returned remains vacant in the Senate and there is an obvious public interest in filling the vacancy as soon as possible.

But we are conscious that in filing the summons for the special count we have acted on an assumption as to the basis upon which the Court made the order that it made last Wednesday, declining to declare that Ms Hughes was duly elected to that place. In particular, we have assumed that the Court’s reasoning proceeds on the basis the effect of section 44 was that Ms Hughes was not capable of being chosen.

If it turned out that the Court reasoned that she was capable of being chosen but not capable of being sitting then that would affect the character of the vacancy in the Senate, and for that reason my instructions are not to take the further step that your Honour foreshadowed and to seek final orders filling the vacancy until after the Court has published its reasons in relation to Ms Hughes, but we sought now to have the Court put in as good a position as possible to make orders immediately following the publication of reasons by ensuring that all of the relevant information was to hand.

HIS HONOUR: I see. Very well. So for the moment you seek nothing other than the orders in the summons?

MR DONAGHUE: That is correct.

HIS HONOUR: Yes. Very well. Well, I am prepared to make those orders, Mr Solicitor. Is there anything else you wish to raise?

MR DONAGHUE: No, there is not, your Honour.

HIS HONOUR: Very well. Well, I therefore make orders numbers 1 to 4 in the summons, filed 17 November 2017.

MR DONAGHUE: If the Court pleases.

HIS HONOUR: The Court will now adjourn.

AT 2.17 PM THE MATTER WAS ADJOURNED