Can Hollie Hughes Get Past the High Court’s “Brutal Literalism”?

“[the vacancy caused by Robert Wood’s disqualification] can be filled by completing the election after a recount of the ballot papers” (Re Wood, 1988)

“… s 44(i) applies until the completion of the electoral process” (Re Canavan & Ors, 2017)

With those words delivered separately across nearly thirty years, the High Court has possibly put paid to Hollie Hughes’ hopes of becoming a Senator for NSW.

Hughes, a Liberal Party member, would be the likely replacement as Senator for NSW for the Nationals’ Fiona Nash, disqualified last week for holding dual citizenship at the time of the 2016 election.

However, Hughes was appointed as a part time member to the Administrative Appeals Tribunal by Attorney-General George Brandis in June this year.  This could disqualify Hughes from being elected to the Senate for holding an office of profit under the Crown (contrary to s.44 (iv) of the Constitution).

While it seems extraordinary that a putative Senator might now be disqualified for taking up a public office long after she thought the election was done and dusted, the so-called “brutal literalism” of this High Court makes this, at the very least, a distinct possibility.

In Vardon v O’Loghlin (1907), the High Court as the Court of Disputed Returns held that if it voided an election “the case is to be treated for all purposes, so far as regards the mode of filling the vacancy, as if the first election had never been completed”.

Similarly, in the case of Robert Wood in 1988, the High Court said that “A Senate election is not completed when an unqualified candidate is returned as elected. The return does not meet the exigency of the writ …”.

With the decisions in Re Canavan & Ors, the High Court has now left the 2016 elections for Senators in NSW, Queensland and Western Australia incomplete. Those elections will only now be completed by declaring other candidates elected after recounting the Senate ballot papers.

Hughes is reported as having an opinion to the effect that if she resigns from the AAT before the High Court moves to declare her election then she avoids disqualification. However, precedent in the 1992 case of Sykes v Cleary is against her on this point.

While Phil Cleary had been employed as a teacher (but on leave without pay) at the time of nominations and on polling day, he had resigned from the public service before the election was declared. The majority in Sykes v Cleary held that resigning before the completion of the election did not remove the disqualification. The reasoning was that a holder of a public office might not resign even when elected, and that this possibility removed certainty from the electoral process.

The only aspect of Hughes’ circumstances that the High Court has not previously considered is what happens if the conditions for disqualification arise after the candidate has nominated (or even after polling day) but are removed before the election is completed.

Here, a former Attorney-General (Liberal Peter Durack advising Labor’s Gareth Evans in 1980), a number of Department opinions (in 1984 and 1996), the barrister advising the Howard Government (Christine Wheeler, QC in 1996), and a former Senate Clerk (Harry Evans in 1996) all thought a temporary and intervening (valid) appointment to an office of profit would be enough for disqualification.

If her election is disputed, Hughes’s hopes rest on the High Court finding that there was some magical void between the start of the election in May-June last year and the “completion” of the election later this year, when she was allowed to be disqualified.

In effect, the High Court would have to find there is a period between polling day and the declaration of the election where section 44 does not apply.

Put simply:

  • Re Canavan & Ors effectively holds that s.44 applies until the electoral process is completed.
  • Vardon v O’Loghlin and Re Wood No. 2 each hold that a Senate election is rendered incomplete by voiding the election of a disqualified candidate.
  • Re Wood No. 2 holds that a Senate election, where the election of a Senator is voided, is only completed after recounting the ballot papers to determine who fills the vacancy.
  • Sykes v Cleary holds that resigning an office of profit under the Crown before the election is completed is insufficient to avoid disqualification.
  • And it remains to be seen how the High Court would regard a temporary appointment to an office of profit during the election process.

 

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