On 15 November 2017, when the High Court sitting as the Court of Disputed Returns handed down its decision in Re Nash [No 2]  HCA 52, it became clear that the 2016 general election was not yet over; for the third time in little over a year, the Australian Electoral Commission would recount the 2016 ballot papers. The Court held that Ms. Hollie Hughes, who by a special count of the 2016 election ballot papers was identified as the next entitled candidate to replace Senator Nash following her disqualification from the Senate, was herself ineligible to be elected under s 44(iv) of the Constitution.
Considered anachronistic and out-dated by some, s 44(iv) exists for a very important reason. Under Australia’s constitutional doctrine of separation of powers, s 44(iv) is designed to give effect to the notion that the Executive and Legislative arms of the Government should operate independently. It ensures that a person employed by the Executive cannot at the same time be part of the Legislature. The concern is that a person employed by the Executive would be unable to serve the people impartially, and their dual roles would give rise to a potential conflict of interest. As a result, s 44(iv) requires that during a general election, all candidates employed by the Executive must resign from their position until such time that the people have successfully completed the process of directly electing their representatives.
On this basis, I argue that the decision is justified as the most efficient way of conducting parliamentary democracy under our Constitution.
During the general election for the Commonwealth Parliament on 2 July 2016, Ms. Nash and Ms. Hughes had both stood as candidates to be elected to the Senate for the State of New South Wales. Following the election, on 5 August 2016, Ms. Nash was declared elected. Approximately a year after the election of Senator Nash, on 15 June 2017 Ms. Hughes was appointed as a part-time member of the Administrative Appeals Tribunal (AAT). The appointment commenced on 1 July 2017, for a period of seven years.
In July 2017, what has come to be called the citizenship saga first unfolded, when former Greens Senator Scott Ludlam announced that he was ineligible to hold his seat because he was a dual citizen of Australia and New Zealand. Four days later, Mr. Ludlam’s colleague from Queensland, Senator Larissa Waters, made a similar revelation that she was a dual citizen of Australia and Canada. Within weeks, questions arose regarding the eligibility of five other parliamentarians. Together with Mr. Ludlam and Ms. Waters, they came to be known as the “Citizenship Seven”.
In September 2017, the Senate referred certain questions to the High Court sitting as the Court of Disputed Returns regarding the eligibility of the “Citizenship Seven”. In relation to Senator Nash specifically, the referral asked the Court to determine:
- Whether Senator Nash was disqualified to be elected to the Senate under section 44(i) of the Constitution; if “yes”,
- In what manner should her vacancy be filled.
On 27 October 2017, the Court answered the Senate’s questions in Re Canavan (2017) 91 ALJR 1209. In a unanimous decision, the Court held that at the date of her nomination, Senator Nash was ineligible to be chosen as a Senator under s 44(i) of the Constitution because she had been a UK citizen by descent at birth. The Court then ordered a special count of the 2016 election ballots to fill Senator Nash’s vacancy, as per directions to be provided by a single Justice of the Court.
Following directions made by Gageler J, a special count of the 2016 ballots was conducted and Ms. Hughes was identified as the next entitled candidate to be elected in place of the ineligible Senator Nash. In light of Ms. Hughes’ employment with the AAT, however, an issue arose as to whether she was herself ineligible to be capable of being chosen under s 44(iv) of the Constitution. This was despite the fact that Ms. Hughes resigned from her position with the AAT about 45 minutes after the Court’s decision in Re Canavan.
The end-point of “the process of being chosen”
The High Court’s jurisdiction to determine whether Ms. Hughes was incapable of being chosen was not in dispute. Such jurisdiction was conferred on the Court by section 379 of Commonwealth Electoral Act 1918 (Cth). Nor was it in dispute that Ms. Hughes’ appointment as a part time member of the AAT constituted an “office of profit under the Crown” within the meaning of s 44(iv) of the Constitution. Rather, the issue was one of timing. Did the disqualifying office with the AAT—which Ms. Hughes held from 1 July 2017 until 27 October 2017—render her “incapable of being chosen” as a Senator under section 44 of the Constitution (at 9-10).
Section 44 of the Constitution provides that:
Any person who:
(iv) hold any office of profit under the Crown, or any pension payable during the pleasure of the Crown out of any of the revenues of the Commonwealth; or
shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.
Relevantly, section 45(i) provides that:
If a senator or member of the House of Representatives:
(i) becomes subject to any of the disabilities mentioned in the last preceding section;
His place shall thereupon become vacant.
In support of Ms. Hughes, the Attorney-General submitted that the earlier case of Sykes v Cleary (1992) 176 CLR 77 was authority for the proposition that it is the date of polling that is the end-point of the process of being chosen. Since Ms. Hughes had taken up her position with the AAT after the declaration of the 2016 election results, it was argued that she satisfied the requirements of s 44(iv) and should be validly declared elected (at 21-24). The Court disagreed.
Sykes v Cleary concerned the eligibility of a public school teacher, Mr. Cleary, who had been elected as a member of the House of Representatives during a by-election on 11 April 1992. At the time of the election, Mr. Cleary had been on leave without pay from his position for about 2 years. Following the by-election but prior to the declaration of the results, on 16 April 1992, Mr. Cleary resigned. The High Court sitting as the Court of Disputed Returns held that despite Mr. Cleary’s absence from work on leave without pay and his resigning prior to the declaration of the by-election results, he had held an “office of profit under the Crown” within the meaning of s 44(iv) at a relevant time, and so was “incapable of being chosen”.
As explained in Re Nash [No 2], the decision in Sykes clarified that the people’s “choice” under ss 7 and 24 of the Constitution is a process rather than a single act, ‘of which nomination is an essential part’ (at 27). It did not determine where the temporal end-point of the process of choosing lies. The Court, therefore, considered whether the authorities of Free v Kelly (1996) 185 CLR 296 and the more recent Re Culleton (No 2) (2017) 91 ALJR 311, assisted in determining this issue.
The material facts in Free v Kelly were similar to Sykes. Ms. Kelly was successfully elected to the House of Representatives in the 1996 federal election. At the time of her nomination, however, she was a serving member of the Australian Defence Force (ADF) and at her request was transferred to the Royal Australian Air Force Reserve. Ms. Kelly conceded that she was incapable of being chosen as a member because her employment with the ADF was clearly “an office of profit under the Crown”. The decision did not focus on the temporal end-point of s 44(iv), however. In his judgment, Brennan CJ cited Sykes v Cleary, and held that the time of her nomination as a candidate ‘is the relevant time for determining whether a person is incapable of being chosen on any of the grounds specified in s 44’ (at 3).
By contrast, Re Culleton (No 2) concerned whether Mr. Rod Culleton was eligibly elected as a Senator under s 44(ii). Under s 44(ii) any person who:
… has been convicted and is under sentence, or subject to be sentenced, for any offence punishable under the law of the Commonwealth or of a State by imprisonment for one year or longer … shall be incapable of being chosen or of sitting as a senator …
Mr. Culleton was successful at securing a Senate seat for Western Australia at the 2016 federal election. A question under s 44(ii) arose, however, because prior to his nomination Mr. Culleton had been convicted by a New South Wales Local Court of larceny—a crime which carried a maximum sentence of two years. Despite Mr. Culleton’s conviction being annulled following the election, the High Court unanimously held that because at the date of the 2016 election Mr. Culleton had been convicted and was subject to be sentenced for an offence punishable by imprisonment for one year or longer, he was incapable of being chosen. Justices Kiefel, Bell, Gageler and Keane explained (at 13):
In Sykes v Cleary, it was held that the words “shall be incapable of being chosen” in s 44 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.
None of these three cases—Sykes v Cleary, Free v Kelly and Re Culleton (No 2)—answered the question as to when the temporal end-point of the process of being chosen lies. Consequently, the Court in Re Nash [No 2] moved to consider the text and structure of the Constitution (at 28).
The Court’s decision
As a starting point, the Court referred to sections 7 and 24 of the Constitution. The Court noted that the two sections prescribe that the Senate shall be composed of Senators ‘directly chosen by the people of each State’, and Members of the House of Representatives shall be ‘directly chosen by the people of the Commonwealth’. Given this, the Court stated that it would be incorrect to interpret that the temporal end-point of the process of being chosen ends with the people’s “act of choice” at polling because if this was so, a potential “hiatus” would occur in that if:
a person who became subject to a disability mentioned in s 44 after polling but before being returned as a senator or member of the House of Representatives would not have been prevented by that section from being chosen but would be prevented by that section from sitting (at 31).
To eradicate the possibility of such a hiatus, the Court referred to the vacating operation of s 45, which ensures that ‘there is no gap between the operation of s 44 and the operation of s 45(i)’ (at 32).
Importantly, the Court noted that it is the Commonwealth Electoral Act 1918 (Cth) (‘CEA’) which sets out the process of how the direct choice of the people under ss 7 and 24 should be facilitated, translated and ultimately made. Under the CEA, the process of choice by the people does not end with polling because crucially, part XVIII of the CEA provides a structure and mechanism for scrutinising polling results. The process of choice:
continue[s] until a candidate is determined in accordance with those processes to have been chosen. They are brought to an end only with the declaration of the result of the election and of the names of the candidates elected, after which certification of those names and return of the writ is a formality (at 38).
On this basis, the Court concluded that the process of electoral choice under the CEA remains constitutionally incomplete until such time that a person is determined as elected and not disqualified from being chosen, as accepted in Vardon v O’Loghlin (1907) 5 CLR 201 and applied in Re Wood (1988) 167 CLR 145; ‘[a] Senate election is not completed when an unqualified candidate is returned as elected’ (at ).
Referring back to the decision in Re Canavan, the Court noted that the decision was premised upon the authorities of Vardon v O’Loghlin and Re Wood. Essentially, in Re Canavan the direct choice of the people under s 7 of the Constitution remained incomplete because Senator Nash was disqualified from being chosen. It was on the basis of this understanding that the Court directed that the vacant place of the disqualified Senator Nash be filled by a special count of the 2016 ballot papers. It was on the basis of the same understanding that the Attorney General sought an order from the Court that Ms. Hughes be declared duly elected.
Based on these reasons, the Court found that Ms. Hughes was herself disqualified under section 44(iv) from being elected because she held an office of profit under the Crown at a time when the direct choice of the people under section 7 of the Constitution to elect Ms. Nash remained incomplete.
The Court did recognise the apparently ‘harsh or unduly technical’ implications of its decision (at 45). It explained, however, that it is one that must be read in context. The occurrence of a special count of ballots due to Ms. Nash’s ineligibility meant that the people’s choice under s 7 of the Constitution remained incomplete; ‘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’ (at 45).
Re Nash [No 2] carries several important consequences for future candidates, parliamentary proceedings, and the people of Australia. First, there are complications for candidates who wish to remain an eligible replacement following the conclusion of a general election—they must not take up an office of profit under the Crown. Second, as the balance of power in the Senate may shift until a vacancy is properly filled, this ruling will impact future parliament proceedings. Finally, since it can take over a year to properly fill a vacant Senate seat, the decision may also affect the people; as long as a Senate seat remains vacant, the people of the relevant state will lack their full quota of representatives. Should the Court have borne these practical consequences in mind to reach a more lenient interpretation of s 44 such that the temporal end-point of the process of being chosen would end as soon as a candidate was initially declared elected at the conclusion of a general election? Having regard to the overarching purpose of an electoral system and the role of a special count of ballot papers, I believe the Court’s conclusion is justified.
The most important message from this decision is that a special count of ballots is not a new general election process. When a disqualification occurs, a special count of ballots is a process designed to determine the people’s most preferred eligible candidate from the general election where the people were responsible for directly choosing their preferred candidates. This efficient alternative to a new general election process ensures that a disqualification does not prevent the people from directly choosing their preferred replacement candidate. It is for this reason the Court held that the process of choice by the people at a preceding general election remains constitutionally incomplete until such time that a vacancy is properly filled. By contrast, if the Court was to interpret the people’s choice as complete once a candidate was declared elected, then following the disqualification of that candidate, his or her replacement would have been chosen without the direct choice of the people. Such a replacement would be unconstitutional.
Finally, as the Court stated, although a candidate cannot predict when and if an elected Member or Senator will be disqualified, the possibility of such a disqualification occurring following a general election remains. By voluntarily choosing to take up an office of profit under the Crown, a candidate loses his or her right to remain eligible as a replacement if and when a disqualification occurs. A candidate who fails to be elected at a general election but wishes to remain an eligible replacement must refrain from taking up an office of profit under the Crown. As ‘harsh and unduly technical’ this rule may appear, it is the most efficient way of ensuring that parliamentary democracy functions and the requirements of the Constitution are fulfilled.
Arthur Marusevich is a lawyer in Canberra.
Suggested citation: Arthur Marusevich, ‘Re Nash [No 2]: The Essence of Time’ on AUSPUBLAW (5 March 2018) <https://auspublaw.org/2018/03/re-nash-no-2/>