Re Kakoschke-Moore [2018] HCATrans 15 (13 February 2018)

Last Updated: 13 February 2018

[2018] HCATrans 015

IN THE HIGH COURT OF AUSTRALIA

SITTING AS THE COURT OF
DISPUTED RETURNS

Office of the Registry
Canberra No C30 of 2017

B e t w e e n -

IN THE MATTER OF QUESTIONS REFERRED TO THE COURT OF DISPUTED RETURNS PURSUANT TO SECTION 376 OF THE COMMONWEALTH ELECTORAL ACT 1918 (CTH) CONCERNING MS SKYE KAKOSCHKE-MOORE

KIEFEL CJ
BELL J
GAGELER J
KEANE J
NETTLE J
GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 13 FEBRUARY 2018, AT 10.16 AM

Copyright in the High Court of Australia

MR S.P. DONAGHUE, QC, Solicitor-General of the Commonwealth of Australia: If the Court pleases, I appear with my learned friends, MS Z.E. MAUD, MR M.P. COSTELLO and MS J.D. WATSON, for the Commonwealth Attorney-General. (instructed by Australian Government Solicitor)

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

MR M.L. ABBOTT, QC: If the Court pleases, I appear with my learned friend, MR D. AGRESTA, for Mr Timothy Storer. (instructed by Illes Selley Lawyers)

KIEFEL CJ: Yes, Mr Jackson.

MR JACKSON: Your Honours, as the Court will have seen, your Honour Justice Nettle, on 24 January this year, answered question (a), which had been referred by the President of the Senate on 28 November 2017 – the reference is page 2 of the court book - that was answered, your Honours will see, by holding that there was a vacancy by reason of section 44(i) of the Constitution in the representation of South Australia in the Senate for the place for which Ms Kakoschke-Moore was returned.

If I could say, your Honours, the vacancy arose because, if I could put it very shortly, as is summarised in the written submissions on behalf of our client, paragraph 4 in-chief, her father and paternal grandparents were all born in Australia but her maternal grandparents were both born in the United Kingdom, with her mother being born pre-independence in Singapore, while both the mother’s parents were serving in the Royal Air Force.

She resigned from the Senate on 22 November 2017 in consequence of the Court’s decision in Re Canavan. Your Honours will see that referred to in our written submissions in-chief, paragraphs 15 and 16.

Your Honours, whether there was a relevant vacancy has been resolved by Justice Nettle’s determination. The existence of the vacancy of course has given rise to a number of questions which in consequence have been reserved for the Court under section 18 of the Judiciary Act. Your Honours, those questions are set out in paragraph 2 of Justice Nettle’s order of 24 January 2018. That is a document later than and separate from the court book. May I take your Honours to it for just a moment?

Your Honours will see from the bottom of the first page of it that three questions were reserved. Your Honours, I will not read out their terms of course but may I invite your Honours’ attention to them for just a moment and I do so in order to indicate the course which we will submit the Court should adopt in answering those questions.

Now, your Honours will see that in this regard, question 2(i) asks whether the vacancy should be filled by, to put it shortly, a special count or by some other and what method. Questions 2(ii) and 2(iii) each works on the assumption that there may be a special count and asks questions as to the participation of, on the one hand, Ms Kakoschke-Moore - that is question 2(ii) - and Mr Storer - that is question 2(iii).

Your Honours, may I pause to say something about the position now of Ms Kakoschke-Moore and of Mr Storer. Ms Kakoschke-Moore and Mr Storer were both in the same political party group, the Nick Xenophon Team, above the line, a phrase to which I will return, on the ballot paper for the Senate. Your Honours can see that ballot paper at page 47 and immediately following of the court book.

There were many, many parties, many groupings. Your Honours will see at page 47 the heading “F” and it is the Nick Xenophon Team – and, your Honours, the page immediately following and the page following that, 48 and 49, contain the names of the other groupings. They were above the line and also, your Honours will see, below the line. In relation to the Nick Xenophon Team, returning to page 47, Ms Kakoschke-Moore was listed third of the four Nick Xenophon Team candidates. Mr Storer was the fourth and last of those candidates.

Your Honours, since her resignation from the Senate on 22 November last year Ms Kakoschke-Moore has renounced her citizenship of the United Kingdom. You will see that at paragraph 18 of our submissions-in-chief and the renunciation – and I will take your Honours to the documents in just one moment – took effect on 6 December last year.

Could I in that regard take your Honours to the court book, at page 263 and in particular to paragraphs 24 and 25 of her statement. Your Honours will see that goes over to the next page, paragraph 25, saying that the renunciation was effective as of that date. The actual documents to which reference is there made can be seen, on the one hand, at page 305, about line 15, part of the email. It is the three-line part immediately following “Dear Skye”. Then, your Honours, at page 317, you will see a document that commences on the previous page. Again, at about line 15, you will see a reference to the official confirmation of the renunciation.

Your Honours, could I just say that there is thus no longer any section 44(i) impediment to Ms Kakoschke-Moore being chosen or sitting as a senator. She is also an Australian citizen and a person otherwise capable of being so chosen and of so sitting. As your Honours will see from her affidavit at page 262, paragraph 12, she remains a member of the Nick Xenophon Team and has been for quite some time.

No other member of the Nick Xenophon Team – I leave aside for the present the position of Mr Storer – has sought the Senate place held to have been vacated by Ms Kakoschke-Moore. Nor, your Honours, has any other person, whether a member of a political party or not – again, putting to one side the position of Mr Storer – sought that place.

Could I turn then, your Honours, to Mr Storer’s position and in this case, events subsequent to the double dissolution election have also taken a different course for his political affiliations. In this regard, he is no longer a member of the party which is the Nick Xenophon Team and his membership came to an end on 3 or perhaps 6 November last year.

In that regard, your Honours, may I go back to the court book, first of all to page 174 and paragraphs 23 to 28 and it is Ms Bonaros’ affidavit and she is the secretary of the Nick Xenophon Team Incorporated, and in particular your Honours will see about paragraph 27, in any event, he had resigned from the party and the letter of resignation which she has quoted there, your Honours can see at page 238.

As your Honours will see from the largesse paragraph, further on page 238, Mr Storer appears to have - if I could use an expression from a different context - rather “covered the fields” that might be covered by his resignation. Your Honours, the events to which I have referred then give rise to the questions that have been reserved under section 18 and your Honours may I invite your Honours once more to look at the questions and to indicate what are our preferred answers to those questions.

The starting point is that we contend in relation to question 2(i), that the vacancy should not be filled by a special count. I will come in just a moment, your Honours, to the course which I will describe as our preferred course, if a special count is not ordered but may I first say what our answers to the remaining questions would be if a special count is ordered and those answers would be that question 2(ii) should be answered, yes; that is, if there is to be a special count.

The form of special count would allow Ms Kakoschke-Moore, or votes in her favour - sorry, I will start again - before the special count, would allow her now to be capable of being chosen to fill the vacancy and question 2(iii) would be answered adversely to Mr Storer, then he would be excluded from the special count.

Your Honours, our preferred view, as I said a moment ago, is that there should not be a special count and that the vacancy should be filled before the remainder of the term that Ms Kakoschke-Moore was originally elected for by her appointment to that office. And that would mean, your Honours, that question 2(i) in that case should be answered in this form: the vacancy and the representation of South Australia in the Senate for the place for which Ms Kakoschke-Moore was returned on 4 August 2016 should be filled by the appointment of Ms Kakoschke-Moore and, in that instance, questions 2(ii) and 2(iii) would each be unnecessary to answer.

Your Honours, could I turn now to the way in which we would submit that the Court can and, with respect, should arrive at those conclusions. In our submission, a relevant starting point is the position, the changed position, of Mr Storer. It has changed, your Honours, because he had ceased to be a member of the political party for which South Australians voted in mid-2016.

Your Honours, the submission which we make is that if a special count now has the effect that votes then cast in favour of a political party are treated now as votes in favour of candidates who are no longer members of that political party – that is, if I could put it this way, a rather curious result and it is curious because it is not a reflection but to use the words one sees in the cases, rather a distortion of the effect of those votes. It is a result, we would submit, at which the Court should not arrive and that Mr Storer should be excluded from the benefit of a special count because of his ceasing to be a member of the political party by, at least, 6 November last year.

Your Honours, underlying the submissions which we make dealing with the consequences of Mr Storer’s change of position are provisions of the electoral legislation, the Commonwealth Electoral Act, of course. Your Honours, that is because its provisions in relation to Senate elections make endorsement by a registered political party a feature affecting the way in which votes for the Senate are taken into account.

May I take your Honours to the Act. Relevant parts of it are in volume 1 of the joint book of authorities, behind tab 4. Your Honours, the relevant provisions commence with section 162, which is on the page numbered at the bottom of the page, 62. By virtue of section 162:

No person shall be capable of being elected as a Senator or a Member of the House of Representatives unless duly nominated.

The mode of nomination is provided for by section 166. That is at page 63. Your Honours will see that various provisions of 166 recognise that candidates may be endorsed by political parties. Could I take your Honours, for example, to section 166(1)(b)(ii) and 166(1AAA)(b).

The term “political party” is a defined term. Your Honours will see that defined in section 4, at page 50. Your Honours will see the way in which the definition is expressed:

the promotion of the election to the Senate . . . of a candidate or candidates endorsed by it.

Could I go back then to section 166. Under subsection (1), a nomination for the Senate must be in, relevantly, Form CA. As your Honours will see from section 166(1)(b)(ii), it may be signed by:

the registered officer of the registered political party by which the candidate has been –

nominated. That Form CA – I do not need to take your Honours to it – but may I just say it concerns nomination of one candidate by the registered political party. Where more candidates than one are nominated by a registered political party, the relevant provision is section 166(1AAA). Your Honours will see, as the terms of (1AAA)(b) indicate, it is again to be signed by the registered officer of the registered political party by which those candidates are nominated.

Form CC, to which section 166(1AAA) refers, is the form that was used by the Nick Xenophon Team in this case. Your Honours can see it in the court book at pages 42 and 43. Your Honours will see at the top of page 42 a group nomination by the registered officer and you will see at about line 5 on the page:

PART A – Nomination/Endorsement by registered political party

That continues down. The names of four candidates, including those of Ms Kakoschke-Moore and Mr Storer, appear on the same page. Your Honours, grouping of candidates is permitted by the Act and your Honours will see that is provided for by section 168 – page 68 of that volume. Grouping under section 168 does not itself provide an indication of the political party to which the candidate belongs. However, the name, or an abbreviation of the name of the party endorsing the candidate and a logo may be printed on the ballot paper pursuant to section 169 and the provisions dealing with the working out of those concepts can be seen in sections 210A, 214 and 214A. I do not think I need to take your Honours to the detail of that.

If I could go back to section 170 at page 71, your Honours will see that section 170 provides the requirements for a valid nomination. Your Honours will see that it requires, as section 170(1)(b)(i) indicates, that there be declarations as to various matters there set out. One of them relates to the section 44(i) qualification – that is, section 170(1)(b)(i).

Your Honours will see the form in which the words of section 170 are stated and they set out requirements that are, in a sense, formal. On a number of occasions it has been noted in decisions of the Court that a candidate has been duly nominated if the nomination complies with the formal requirements of the Act, even if it turns out that the statement in the nomination has been incorrect.

May I take your Honours to the first of those decisions? That is Re Wood [1988] HCA 22; (1988) 167 CLR 145. It is in volume 2 behind tab 21. The relevant passage is at page 165. It is really the last 10 lines or so, where it says:

an indication of a voter’s preference for an unqualified candidate is a nullity. That is not to say that the ballot papers are informal. An unqualified candidate who has been duly nominated, that is, one whose nomination complies with the formal requirements of the Act, is a candidate whose name is properly included on the ballot paper.

That passage has been referred to on a number of occasions. May I give your Honours two references. One is Re Culleton (No 2) (2017) 91 ALJR 311 at 319, paragraph [43], which is behind tab18 in volume 2 - that is page 574 of that volume. What was said in the first half of paragraph [43], the reference to Re Wood:

“an election is not avoided if an unqualified candidate stands” because if it were otherwise “the nomination of unqualified candidates would play havoc with the electoral process”.

Then, your Honours, in Re Day (No 2) [2017] HCA 14; (2017) 91 ALJR 518 at 519, which is behind tab 19, in paragraph [208] your Honour Justice Keane – your Honours will see the second half, in effect, of the paragraph. One comes, then, returning to the provisions of the Act, to the actual voting in elections for the Senate. Your Honours, one can vote in the Senate above the line or below the line.

Above-the-line voting is for groups named as such and below the line is for individuals named as such. And your Honours will recall the actual ballot paper above the line simply had the name of the group or political party in question. Your Honours, it is not essential that a candidate for the Senate be endorsed by a political party and independents, people who wish to be described on the ballot paper as such, may apply under section 169A, which your Honours will see at page 69 of volume 1 of the book of authorities. They may apply to be described as such.

But, in the end, the Court is concerned here with section 239(2). Your Honours will see that at page 116. Now, it deals with, as the heading immediately above it indicates, “Voting above the line”. Your Honours will see that it is, your Honours, and I so submit a central provision because it determines what or for whom a vote is, in a sense, for.

Your Honours, if I could go to section 239(2), your Honours will see from the first few lines of 239(2)(a) that a vote is given to a party or group. And, going on from there, that party or group is the person’s first preference. The numbering after (1) up to (6) is then a vote indicating the voters’ order of preference for other parties or groups.

Now, your Honours, parties as such do not become senators, it is their endorsed candidates which do and, not surprisingly, there is provision for verification of it of such endorsements in section 169B. But, your Honours, in relation to above-the-line voting, the voter plays no part as such in selecting the Senate candidates for a party or in choosing the order in which they may be elected. The above-the-line voter, votes for a party. Your Honours, section 269(1), if I could go to that for a moment, your Honours, deals with circumstances in which a vote above the line is formal and your Honours will see the reference in 269(1)(a) to section 239(2).

Could I turn now, your Honours to section 272 on which my learned friend, the Attorney-General’s submissions, in paragraphs 63 and 64, place some weight, in our submission, perhaps rather too much weight? Section 272(2) is a recognition of the fact that an above-the-line vote is a vote for a group or party and that, except in the case of a landslide in favour of a party, not all its candidates are likely to fill the vacant seats in the Senate. So that it becomes necessary to work out which of the candidates nominated by that group or party, is successful and that is why one sees the deeming, in effect, provision of section 272 where it says “is taken to have been”.

But the position remains, your Honours, that the vote above the line is a vote for a party or group and, your Honours, that is why, in our submission, at this point, where the operation of section 44(i) in relation to whether is or is not a vacancy has been determined and the question is, the manner by which that vacancy is to be filled. A result which would have a person, who has resigned from the party, being treated as elected to it, is a result which, in our submission, would be rather curious.

Now, your Honours, could I come then to the question, when should a special count be ordered. Your Honours, in a number of decisions, the Court has stated the principles apposite to whether the question of filling a vacancy, or the matter of resolution of filling the vacancy, should be by what has come to be described as a special count.

Your Honours, a relatively modern starting point is Free v Kelly [1996] HCA 42; (1996) 185 CLR 296. It is behind tab 11 in volume 1. Your Honours will see at page 303 of that decision, which is actually at page 303 of the book, at about line 15, his Honour there said that a special count would not be warranted unless it would reflect the voters’ true legal intent and also would not be warranted if it would result in a distortion of the voters’ true intentions.

Your Honours, that approach was approved by a Court of five Justices in In Re Culleton (No 2), which is behind tab 18 in volume 2. The judgment of the plurality is of four members of the Court. Your Honour Justice Nettle, at paragraph [67], I think, agreed, on this aspect of the matter with the plurality. The relevant passage to which I wish to go is at page 574, at the bottom of the page. In particular, your Honours will see that in paragraph [40] the submission is recorded that:

the vacancy should be filled by a special count –

If one goes to paragraph [42], it was not contested by Senator Culleton. I referred to the first half of [43], I think, your Honours, but when one goes to the second half of paragraph [43], your Honours will see it is said, about five or six lines from the bottom of the paragraph:

There is no reason to suppose that a special count would “result in a distortion of the voters’ real intentions”, rather than a reflection of “the true legal intent of the voters so far as it is consistent with the Constitution and [the Electoral Act]”.

Those are, of course, words from Free v Kelly. Then your Honours will see in paragraph [44], about halfway down:

There is no reason to suppose that the votes cast “above the line” in favour of that group were not intended to flow to the next individual nominee of Pauline Hanson’s One Nation party in the event that Senator Culleton was not capable of being elected.

Your Honours, that approach is supported also by Re Day (No 2) [2017] HCA 14; (2017) 91 ALJR 518, which is behind tab 19. Your Honours, if one goes to paragraphs 77 and 78 of the page numbered at the bottom 594, your Honours will see that in paragraph [78] it is said that:

Ms McEwen was listed fourth of the candidates in the Australian Labor Party group on the ballot paper. The three listed above her were elected. At the last count she was the only other candidate, apart from Mr Day, who had not been excluded . . . this does not mean that Ms McEwen’s submission should be accepted to the effect that the other candidate for Family First would obtain an unfair advantage, and voter intentions would be distorted, if Family First above the line votes were counted for that other candidate. Contrary to that submission, a special count which deprived the above the line Family First voters of their vote would distort voter intentions.

Your Honour Justice Keane, at paragraph [210], at the page numbered at the bottom 612, said, at about line 12 on the page:

Ms McEwen’s contention that the votes cast for Family First should be disregarded would, if accepted, constitute a most serious distortion of the real intentions of many thousands of voters, by depriving those votes of all effect.

And your Honours will see the remainder of the paragraph. Then your Honours Justice Nettle and Justice Gordon, at the page numbered 624 at the bottom of the page, said in paragraph [305]:

There is nothing to suggest that the votes cast above the line in favour of Family First were not intended to flow to the next individual nominee of that party -

Then in paragraph [306], the third line:

[t]here is no reason to suppose that a special count would ‘result in a distortion of the voters’ real intentions’ -

One further reference, without taking your Honours to it, you will see a test in rather similar terms being adverted to in Re Canavan [2017] HCA 45; (2017) 91 ALJR 1209 at 1232, paragraph 138 in volume 2 behind tab 16. In our submission, your Honours, here there would be a distortion of the voters’ vote by allowing Mr Storer to participate in the special count.

In this regard, your Honours, if I could endeavour to put it in a relatively summary form, the provisions of Part XIV of the Electoral Act, can and do operation on the basis of group nominations and endorsed candidates; that is, persons endorsed by a political party as part of a group nomination. Your Honours can see that from sections 168, 169, 169B and above-the-line votes are for groups, not individuals, section 239(2)(a).

Your Honours, if Mr Storer were to be declared chosen after a special count, it would be because he received his votes as an endorsed candidate of the Nick Xenophon Team political party. But the result would be that a person who was no longer a member of a party and hence, no longer a candidate who was endorsed in that sense, were declared to have been elected on the basis that it reflected the voters true legal intent.

Your Honours, could I move then to a slightly different topic and it relates to the relevance of section 15 of the Constitution. A result which would result in Mr Storer being able now to participate in a special count would seem inconsistent with, your Honours, the spirit - that is the word I would seek to use – of section 15 of the Constitution that requires casual vacancies to be filled by a member of the same political party. Now, your Honours, we do not suggest and may I make it clear beyond measure, we do not suggest that section 15 applies directly to this case but, your Honours, it is in our submission, of relevance.

Your Honours will see section 15 set out in volume 1 behind tab 3 at page 12. It took its present form in 1977. Prior to that, it had not contained the references to “political parties”. It was enacted following referendum, of course, in the light of what was said to have been recent breaches of constitutional conventions as to filling vacancies in the Senate, the breaches being said to have occurred by the appointment by the States of person who were not of the same political party or were in breach of the rules of the political party, to which the departed Senator had belonged. Your Honours, whether there was or was not such a convention was itself a matter of considerable debate.

But if one looks then at section 15 and to the changes which have been effected by it, in our submission, it has had a number of constitutional, if I could use this expression, influences. One is a recognition that the Senate is not just a house of the States or a just a house of the States and territories, following the two territorial senator cases but rather is a legislative body in which representation may also be of registered political parties.

A second, your Honours, is that as the second paragraph of section 15 now indicates it is to the effect that party replaces party. The third feature, your Honours, is that the section deals directly with what happens if a person chosen or appointed, pursuant to the second paragraph of section 15, leaves the party before taking up the seat. You will see that, your Honours, in the third paragraph of section 15. Your Honours, its wording is clear.

Could I invite your Honours at this point –I will come back to section 15 in just a moment – but could I just say that the Attorney-General’s submissions in paragraph 58 observe that it is not unknown for an elected senator to resign from the senator’s party after election. Now, your Honours, in such a case of course the senator takes his or her chances with the electorate in the future and your Honours will be familiar that florid language is sometimes used to describe the conduct of someone who leaves the party in circumstances of that kind. Equally florid languages are sometimes used to justify their conduct as representing the true nature of the party.

But, your Honours, in any event, that is a situation differing significantly from that obtaining in the present circumstances. Here, and we have referred to this in paragraph 16 of our reply submissions, one is speaking about what the Court should do in the events which have actually happened. If one goes back for a moment then to section 15, of course, it is presently relevant, not directly but perhaps by way of analogy, but it does seem to be a strange result if Mr Storer, because of ceasing to remain a member of a party, could not be appointed to fill a vacancy created by a resignation but could be elected by a special count, using votes cast in favour of a political party of which he is no longer a member.

Your Honours, could I move then to questions of the Court’s jurisdiction and the Court’s powers. May I first say something about an observation in my learned friend the Solicitor-General’s submissions. I will just go to paragraph 9. Your Honours will see that the submissions in paragraph 9 say that the position for which we contend is inconsistent with well-established propositions, which are then set out in six subparagraphs.

Your Honours, if one looks at those propositions they do not, in our submission, answer the argument. They are dealt with in our reply in paragraph 4 but, as we there say, each of the first five propositions set out in paragraph 9 rather begs the question – the ultimate question is whether the effect of the disqualification continues once the disqualification ceases to exist. Could I refer your Honours also to our submissions in paragraphs 5, 6 and 7 of the reply?

Could I come back then to the Court’s jurisdiction and powers? These have been widely interpreted and, in our submission, they do not contain the limitations advanced by the other parties. Your Honours, in this regard, In re Wood which is behind tab 21 in volume 2 in [1988] HCA 22; 167 CLR 145, your Honours will see at the page numbered 648 at the bottom of the page, which is page 157, the Court there said that:

The first matter for examination is the Court’s jurisdiction . . . The starting point is s. 47 -

In the passage which is at page 157 commencing about line 25 and going through to the bottom of the page, it was said:

The jurisdiction thus conferred on the respective Houses of Parliament accords with the jurisdiction which the House of Commons exercised with respect to the election, return and qualifications of its members -

To the same effect, your Honours, is page 159, about point 3 on the page. That is page 650 in the book. Later, on the next page, page 160, or 651, the Court went on to say in the first new paragraph on that page – your Honours, I will not read it out, but there is a reference to there being:

no reason to think that the jurisdiction of the Court when a question is referred to it under Div. 2 is more limited than the jurisdiction which might have been exercised by a House of the Parliament if it were determining the question referred under s. 376 –

and your Honours will see that goes on in the remainder of that paragraph. Your Honours will see that this case is one to which section 376 applies. If I could take your Honours to section 376 which your Honours will see in volume 1 behind tab 4 at page 171. Your Honours will see, looking at the terms of section 376, that it is a provision which allows referral to the Court and it allows referral – and it confers jurisdiction on the Court “to hear and determine the question”. Your Honours, I will come back to those words in a moment, but the matters that can be referred to the Court – and there is overlapping of course – are matters respecting the qualification of a senator or respecting a vacancy in the Senate. I am limiting myself to the Senate for the moment.

Your Honours, it then confers on the Court, jurisdiction to hear and determine the question. Your Honours, what then, one asks is the question? And, it is a question, now, respecting a vacancy in a House of Parliament. The most obvious questions, respecting vacancies in a House of the Parliament, are those actually referred by the Senate in this case – namely, is there a vacancy caused by the particular events and, secondly, if so, by what means should it be filled?

The conferral of jurisdiction on the Court by the concluding words of section 376 is, in our submission, self-sufficient to enable the Court to make orders of the nature which is sought by us. Of course, the Court also has the powers conferred on it by sections 379 and 360 of the Commonwealth Electoral Act. In particular, if one goes to section 360(1)(vi), it gives the Court the power:

to declare any candidate duly elected who was not returned as elected –

I am taking your Honours to the relevant passages In re Wood. She was a candidate.

Your Honours, the powers under those provisions have been interpreted broadly. Could I give your Honours a reference to In re Wood which is at volume 2, behind tab 21? Your Honours, at page 652, going over to page 653, the relevant passage commences about line 18, on page 161, and goes through to the end of the first new paragraph on page 653.

When considering those provisions, at the time of making orders In re Wood, Chief Justice Mason – and this is at the page numbered 663 – 172 in the original report – your Honours will see in the second-last paragraph on that page, he took no narrow view of the ambit of section 379. Your Honours, but in any event, we would submit that section 376 directly gives the Court power to make orders of the nature to which we referred.

Your Honours, could I come then to the reasons why orders of the nature to which we referred should be made. It is clear from the affidavit evidence of Mr Courtney that the Nick Xenophon Team political party received a significant number of above-the-line votes. May I take your Honours to the court book, in particular pages 28 and 29, paragraphs 31 and 37. The above-the-line votes are votes, as we have submitted, which are for a political party or group. As one has seen from section 169(4) and 169(4)(b), they must be candidates endorsed by the political group.

In our submission, your Honours, there is nothing that prevents the Court from having regard to events subsequent to the voting in circumstances where the Court has to determine now, in effect, what is to happen in relation to a vacancy. Your Honours, Ms Kakoschke-Moore was not qualified to be elected to the Senate or to sit in the Senate. That has been recognised. But of course that situation has changed; she is now in a position where she is qualified to do those things.

Could I come then to the decision of the Court in Re Nash (No 2) in volume 2, behind tab 20. It is contended by the Attorney-General in paragraph 10 that our submissions would require Re Nash (No 2) (2017) 92 ALJR 23 to be overturned. But, your Honours, as with this case, Re Nash (No 2) turned very much on its own facts.

Your Honours, in that regard it will be appreciated that Ms Hughes, at the time when the special count was ordered, actually held the relevant office of profit. That can be seen, your Honours, if I can go to the case for a moment, at paragraph [44] first of all. That is at page numbered 634. Your Honours will see that it is said in paragraph [44] that she:

held an office of profit under the Crown during a period in which the disqualification of Ms Nash from being validly returned as elected meant that the process of choice prescribed by the Parliament for the purpose of s 7 of the Constitution remained incomplete.

But, your Honours, the position of course was that, at the time when the special count was ordered, which was the relevant part of the process, as your Honours will see from paragraph 8, she held the office under the Crown – not for long after that, but at that point she held the office of profit under the Crown.

Your Honours, that is one view of the basis on which there was the determination in Re Nash. Another view is that reflected in paragraph [45]. Your Honours will see at page 635, in the latter part of paragraph [45], there is the reference in the left column, in the last three lines, to:

By choosing to accept the appointment for the future, Ms Hughes forfeited the opportunity to benefit in the future from any special count of the ballot papers that might be directed as a result of such a vacancy being found.

Your Honours, the period of office, I think, was for a term of seven years –part-time membership of seven years. Nothing, in our submission, in Re Nash (No 2) supports the contention advanced as the sixth proposition by our learned friends in paragraph 9 of the Attorney-General’s submissions in-chief, namely that disqualification at any time during the election process renders the person “incapable of being chosen”.

Your Honours, to do so really conflates two issues. In the present case, section 44(i) has played its part. No one is looking at what follows when section 44(i) has played its part and resulted in there being a vacancy in the Senate and when looking at what should be done to fill the vacancy.

I suppose, if anything, Re Nash (No 2) supports the case for Ms Kakoschke-Moore. It suggests that one can look at things as they are at the point in the electoral process when the issue comes to be decided, which of course is now at a point where she is qualified. In our submission, it is a case where it would be inappropriate – and your Honours I will endeavour to put very shortly what I wanted to say on this – to include Mr Storer in a special count because of his movement from the party on the one hand.

No one in the Nick Xenophon Team, other than Ms Kakoschke-Moore, is suggested as a possible person to fill the vacancy. No one from any other political party or no one other than Mr Storer has sought to be appointed. In those circumstances, in order to have a situation where South Australia has its representation in the Senate, on the one hand, and where, on the other hand, the votes of many people in South Australia for the Nick Xenophon Team should be respected and their effect not distorted - to use the language from the cases – the result is that there should be the appointment of a person who is a person who is a member of the Nick Xenophon Team - is and remains. To the extent that it matters, Ms Kakoschke-Moore has been a member of the party during that period.

Your Honours, we would submit in the end that contrary to our learned friend’s submissions, Re Nash (No 2) does not need to be overruled. It can be confined to its own facts or facts that are sufficiently similar to it. If it has to be overruled then, your Honours, we would say, so be it and we would rely on our written submissions in paragraphs 8 to 13 of the reply. And, your Honours, more generally, we rely on our written submissions in-chief and in reply and those are our submissions.

KIEFEL CJ: The Court will adjourn to consider the course that it will take.

AT 11.21 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.25 AM:

KIEFEL CJ: Mr Solicitor and Mr Abbott, we need not trouble you.

The Court is unanimously of the view that the answers to the questions reserved for the consideration of the Full Court are as follows:

1. The vacancy in the representation of South Australia in the Senate for the place for which Skye Kakoschke-Moore was returned on 4 August 2016 should be filled by a special count of the votes cast at the poll on 2 July 2016.
   
2. The fact that Skye Kakoschke-Moore renounced her British citizenship with effect from 6 December 2017 does not render her capable of now being chosen to fill that vacancy.
   
3. Timothy Storer should not be excluded from the special count.
   

Reasons will be provided at a later date.

The Court will adjourn until 10.15 tomorrow.

AT 11.27 AM THE MATTER WAS ADJOURNED