Australian High Court hands down judgment at 2:15pm today concerning eligibility to sit of five current and two former federal parliamentarians

High Court of Australia, email notification of judgment, 24 October 2017:

Friday 27 October 2017 at 2.15pm

1. In the matter of questions referred to the Court of Disputed Returns pursuant to section 376 of the Commonwealth Electoral Act 1918 (Cth) concerning Senator the Hon. Matthew Canavan (C11/2017)

2. In the matter of questions referred to the Court of Disputed Returns pursuant to section 376 of the Commonwealth Electoral Act 1918 (Cth) concerning Mr Scott Ludlam (C12/2017)

3. 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 Larissa Waters (C13/2017)

4. In the matter of questions referred to the Court of Disputed Returns pursuant to section 376 of the Commonwealth Electoral Act 1918 (Cth) concerning Senator Malcolm Roberts (C14/2017)

5. 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. Barnaby Joyce MP (C15/2017)

6. In the matter of questions referred to the Court of Disputed Returns pursuant to section 376 of the Commonwealth Electoral Act 1918 (Cth) concerning Senator the Hon. Fiona Nash (C17/2017)

7. In the matter of questions referred to the Court of Disputed Returns pursuant to section 376 of the Commonwealth Electoral Act 1918 (Cth) concerning Senator Nick Xenophon (C18/2017)

Copies of the judgment summaries will be accessible on the High Court website following the delivery of judgment.

Copies of the full judgment will be accessible on http://eresources.hcourt.gov.au/browse once uploaded.

Judgment delivered Friday, 27 October 2017:

HIGH COURT OF AUSTRALIA IN THE MATTER OF QUESTIONS REFERRED TO THE COURT OF DISPUTED RETURNS PURSUANT TO SE... by clarencegirl on Scribd

Australian politics, law, justice and eligibility to sit as a federal parliamentarian

Excerpt from Ingrid Matthews’ article in Independent Australia, Hurrah! It's Section Forty-Forganza Week!, 12 October 2017:

REPORTING POLITICS, LAW AND JUSTICE

There are two other general points to make about the media framing of this case. 

The first is the oft-foreshadowed possibility that those MPs who have not done so may be "forced to resign". This is supremely irritating, because no force is involved (unlike, say, how police handled a child here). Any resignation would be a function of the MP failing to comply with our Constitution and of the High Court doing its job.

The absence of force is important, because the biggest claim that common law liberal democracies like Australia make for our system is this: legal and political conflicts are settled in a "civilised" manner. With words, not fists. With elections, not coups. Using evidence and argument, not violence and vigilantism.

The rituals of legal process are imbued with this pretension to courteous resolution. But that is not how the law looks to Black people in prison cells and their families. Or to welfare recipients sent AFP-branded debt notices by Centrelink. We pay Barnaby Joyce over $1 million per three-year term, and thousands more in expenses, while aggressively pursuing the poorest people in society for petty or non-existent offences and debts.

This is not justice.

Similarly, the notion that the "High Court could bring down the Government" is erroneous. If Joyce is disqualified, it would be a product of Joyce’s oversight and not because the High Court exercised some previously unrealised prerogative power in a curial coup. Plus, there are crossbenchers in the Lower House. The member for Indi will support the Government on confidence and supply. Thus a shift from a majority to a minority government does not "bring down a government". Such a narrative is misleading and frankly embarrassing, given we had a minority government a mere four years ago.

In my view, if Joyce could discover and renounce New Zealand citizenship in 2017, he could have done so in 2004 when he nominated for the Senate, or in 2013 for the seat of New England (Wiki history here). This position is based in law and morality. To me it is simply wrong of Joyce to not ensure his eligibility to sit in the Australian Parliament when he receives such enormous largesse from the Australian public to do so. I say largesse because I can not see any value-add to the national interest, any return on our investment, in Joyce and his travels.

So yes, the politics of this case are fascinating, but not necessarily in the ways that are offered up by political reporters. Constitutional law is a serious business, and the law is not a game.

Ingrid Matthews is a sessional academic who teaches law and human rights. You can follow Ingrid on Twitter at @iMusing or via her blog oecomuse.

High Court of Australia sitting as the Court of Disputed Returns ends federal parliamentarians eligibility to stand hearings and considers its judgment

“The Court reserves its decisions in these matters. It is hardly necessary to say that the Court is aware of the need to give its answers to these references with or without reasons as soon as possible. As counsel and instructing solicitors would appreciate, it is not always possible for the Court to do so immediately. No doubt, they will explain this to their clients.”  [Chief Justice of Australia Susan Mary Kiefel AC, 12 October 2017]

On 10-12 October 2017 the full High Court of Australia sitting as the Court of Disputed Returns heard arguments as to why five members and two former members of the Parliament of Australia should or shouldn’t be found to have been ineligible to stand for election prior to the 2016 general election and sit as an elected members thereafter.

While the country waits on the resolution of this matter, here are links to relevant documents and transcripts.

High Court of Australia Justices

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

Notices

Reference by the Senate to the Court of Disputed Returns - Senator Nick Xenophon

Reference by the Senate to the Court of Disputed Returns - Senator Fiona Nash
Reference by the Senate to the Court of Disputed Returns - Senator Matthew Canavan

Reference by the Senate to the Court of Disputed Returns - Mr Scott Ludlam

Reference by the Senate to the Court of Disputed Returns - Ms Larissa Waters

Reference by the Senate to the Court of Disputed Returns - Senator Malcolm Roberts

Reference by the House of Representatives to the Court of Disputed Returns - The Hon Barnaby Joyce MP

High Court of Australia Transcripts

Re Canavan; Re Ludlam; Re Waters; Re Roberts; Re Joyce [2017] HCATrans 170 (24 August 2017)

Re Canavan; Re Ludlam; Re Waters; Re Roberts; Re Joyce [2017] HCATrans 171 (24 August 2017

Re Canavan; Re Ludlam; Re Waters; Re Roberts; Re Joyce; Re Nash; Re Xenophon [2017] HCATrans 199 (10 October 2017)

Re Canavan; Re Ludlam; Re Waters; Re Roberts; Re Joyce; Re Nash; Re Xenophon [2017] HCATrans 200 (11 October 2017)

Re Canavan; Re Ludlam; Re Waters; Re Roberts; Re Joyce; Re Nash; Re Xenophon [2017] HCATrans 201 (12 October 2017)

Self-styled “bounty hunter” issues penalty writs

David Barrow at http://andrewboltparty.com:

On 27 September 2017, I sued 6 current and former Senators and Mr Barnaby Joyce MP under the Common Informers (Parliamentary Disqualifications) Act 1975 (Cth).

This provides a bounty for citizens ‘hunting down’ any Parliamentarian who has sat when disqualified.

$200 is paid for proving the Parliamentarian is caught out during the 12 months before being served with a lawsuit; and $200 is paid for every subsequent day on which he or she sat.

Any penalties I receive and personal tax benefit, I will donate to the The Fred Hollows Foundation…..

Legality of Same-Sex Marriage voluntary postal survey to be decided by High Court of Australia on 5 September 2017

On the question of whether the law should be changed to allow same-sex couples to marry…..

On 8 August 2017 the Turnbull Government announced it would proceed with a voluntary postal plebiscite if the Senate again refused to pass the Bill for a compulsory attendance plebiscite.

On 9 August the Finance Minister announced that the Australian Bureau of Statistics would conduct a voluntary postal survey of citizens registered to vote.

On 10 August proceedings were commenced in the High Court challenging the minister’s power to expend monies to conduct this survey.

High Court of Australia, August 2017:

Wilkie & Ors v The Commonwealth of Australia & Ors

Documents*

10/08/2017 Application for an order to show cause

10/08/2017 Notice of constitutional matter (Plaintiffs)

11/08/2017 Hearing (Single Justice, Sydney v/ link Melbourne)

14/08/2017 Amended Application for an order to show cause

16/08/2017 Appearance (Defendant 4, Submitting)

17/08/2017 Hearing (Single Justice, Brisbane v/link Melbourne & Sydney)

23/08/2017 Written submissions (Plaintiffs)

23/08/2017 Chronology

30/08/2017 Written submissions (Defendants)

01/09/2017 Reply

05/09/2017 Hearing (Full Court, Melbourne)

*The due dates shown for documents on this page are indicative only. 

Related matter:

M106/2017 – Australian Marriage Equality Ltd & Anor v. Minister for Finance Mathias Cormann & Anor

  Documents*

10/08/2017 Writ of summons

10/08/2017 Statement of claim

10/08/2017 Notice of constitutional matter (Plaintiffs)

11/08/2017 Hearing (Single Justice, Sydney v/link Melbourne)

14/08/2017 Amended Statement of claim

16/08/2017 Defence (First Defendant)

16/08/2017 Submitting Appearance (Second Defendant)

17/08/2017 Hearing (Single Justice, Brisbane v/link Melbourne & Sydney)

21/08/2017 Special case

23/08/2017 Written submissions (Plaintiffs)

23/08/2017 Chronology

30/08/2017 Written submissions (First Defendant)

01/09/2017 Reply

05/09/2017 Hearing (Full Court, Melbourne)

*The due dates shown for documents on this page are indicative only. 

Fate of politicians referred to the High Court over the citizenship saga will not be known until at least mid-October.

It appears that on Day One before the High Court of Australia there is to be no united defence by those sitting politicians defending their election as members of parliament and stories appear to be changing.

ABC News, 24 August 2017:

The fate of politicians referred to the High Court over the citizenship saga will not be known until at least mid-October.

The court held its first hearings on the cases in Brisbane today, and Chief Justice Susan Kiefel has ordered the matter be heard in Canberra on October 10-12.

It is not clear yet how long it could take the court to decide on the case and announce its decision on the five cases currently before it — those of Deputy Prime Minister Barnaby Joyce, former Nationals Minister Matt Canavan, One Nation's Malcolm Roberts and former Greens senators Larissa Waters and Scott Ludlam.

Solicitor-general Stephen Donaghue QC, acting for the Commonwealth, had urged the hearings be scheduled in mid-September to ease any concerns about the validity of decisions made by the 45th Parliament.

In another twist, Mr Joyce's political nemesis, Tony Windsor, has been given permission to join the citizenship challenge in the High Court.

Mr Windsor will argue Mr Joyce has breached the constitution, as he was a dual citizen of New Zealand.

Mr Windsor's lawyers, appearing by videolink from Melbourne, also argued for the right to cross-examine Mr Joyce if they needed it for their case.

Solicitor-general Stephen Donaghue QC, acting for the Commonwealth, urged the court to hear the matters by mid-September.

Chief Justice Kiefel said she understood the "unusual circumstances" of the challenges, and the "high level of urgency", given it would have an impact on the current make-up of the Parliament.

However, she raised concerns whether the matters could be dealt with that quickly, particularly when Deputy Nationals leader Fiona Nash and South Australian senator Nick Xenophon's cases were awaiting formal referral to the court.

Chief Justice Kiefel asked the solicitor-general whether there was a "real practical difficulty in terms of governance" if the court waited until October to hear the cases, to which Mr Donaghue replied there was not.

Lawyers for Senator Canavan also said the Commonwealth had "underestimated the complexity of their case", given the nature of his Italian citizenship.

They also suggested the highly publicised story he had presented about his mother signing him up for Italian citizenship was "irrelevant", rather arguing that there had been retrospective changes to Italian laws that had led to the strife.

Mr Donaghue said the cases of Senator Canavan, Mr Joyce and Ms Waters were different to those of Senator Roberts and Mr Ludlam.

He argued Senator Canavan, Mr Joyce and Ms Waters had no knowledge they could be considered dual citizens under foreign law.

The solicitor-general but suggested Senator Roberts and Mr Ludlam knew or should have known.

Lawyers for Senator Roberts criticised the initial timing of the full hearings, suggested by the Commonwealth.

They also took issue with the Attorney-General's offer to get the same British QC enlisted to give expert evidence on other citizenship cases to also draft a report about Senator Roberts' status.

The argument was that they should have the chance to brief the legal expert themselves, and have the opportunity to find their own experts if they did not agree. [my highlighting]

The Australian, 24 August 2017:

Barrister Robert Newlinds SC, for India-born Senator Roberts, said his client did not concede to being a citizen of any country other than Australia.

However, Mr Newlinds said Senator Roberts made contact with the British Home Office before the election, but received no response. He then sent another email before the election and “renounced” any foreign citizenship.

However, Senator Roberts did not receive any acknowledgement from the Home Office until after the election, the court has heard, when they sent him a renunciation form to fill out.

He later was told by the Home Office that his renunciation of British citizenship had been accepted – but Mr Newlinds said it was not clear whether that acceptance was in relation to the pre-election email or the post-election form……

Attorney-General George Brandis says the government is “grateful” the High Court agreed to hear all eligibility cases in the one hearing.

Senator Brandis said the hearing, to be held in the first fortnight of October, was scheduled as early as possible, despite the government asking for an earlier date on the 13th and 14th of September.

“We are very grateful that the High Court has listed the matter at the next practicable opportunity, we were pressing the court to hear it even earlier in September but it just wasn’t practicably possible particularly since the matter was going to be set down for three days,” Senator Brandis said.

“By the standard of listing matters in the High Court it is a very swift hearing, it gives all the parties a full opportunity to be ready, to present both written submissions and of course oral argument….. [my highlighting]

Matters for judgment by the High Court sitting as the Court of Disputed Returns:

NOTICE - Reference by the Senate to the Court of Disputed Returns - Senator Matthew Canavan

NOTICE - Reference by the Senate to the Court of Disputed Returns - Mr Scott Ludlam

NOTICE - Reference by the Senate to the Court of Disputed Returns - Ms Larissa Waters

NOTICE - Reference by the Senate to the Court of Disputed Returns - Senator Malcolm Roberts 

NOTICE - Reference by the House of Representatives to the Court of Disputed Returns - The Hon Barnaby Joyce MP

High Court judgment enables Australian Government to wash its hands of asylum seekers' fate

THE CHILDREN……

THE JUDGMENT……

High Court Of Australia PLAINTIFF M68/2015 v MINISTER FOR IMMIGRATION AND BORDER PROTECTION & ORS [2016] HCA 1, 3 February 2016:

Today the High Court held, by majority, that the plaintiff was not entitled to a declaration that the conduct of the first and second defendants in relation to the plaintiff's past detention at the Nauru Regional Processing Centre ("the Centre") was unlawful. The majority of the Court held that s 198AHA of the Migration Act 1958 (Cth) ("the Act") authorised the Commonwealth's participation, to the extent that the Commonwealth did participate, in the plaintiff's detention.

The plaintiff is a Bangladeshi national who was an "unauthorised maritime arrival" as defined by s 5AA of the Act upon entering Australia's migration zone. She was detained by officers of the second defendant and taken to Nauru pursuant to s 198AD(2) of the Act. Nauru is a country designated by the first defendant as a "regional processing country" under s 198AB(1) of the Act.

On 3 August 2013, the Commonwealth and Nauru entered into an arrangement relating to persons who have travelled irregularly by sea to Australia and who Australian law authorises to be transferred to Nauru ("the second MOU"). By the second MOU and administrative arrangements entered into in support of the second MOU (including arrangements for the establishment and operation of the Centre) ("the Administrative Arrangements"), Nauru undertook to allow transferees to remain on its territory whilst the transferees' claims to refugee status were processed. The Commonwealth was to bear the costs associated with the second MOU. Since March 2014, the third defendant has been a service provider at the Centre pursuant to a contract with the Commonwealth to provide "garrison and welfare services" ("the Transfield Contract").

Section 198AHA applies if the Commonwealth enters into an arrangement with a person or body in relation to the regional processing functions of a country. Sub-section (2) provides, in summary, that the Commonwealth may take any action, and make payments, in relation to the arrangement or the regional processing functions of the country, or do anything incidental or conducive to taking such actions or making such payments. The plaintiff brought proceedings in the original jurisdiction of the High Court seeking, amongst other things, a declaration that the Commonwealth's conduct (summarised as the imposition, enforcement or procurement of constraints upon the plaintiff's liberty, including her detention, or the Commonwealth's entry into contracts in connection with those constraints, or the Commonwealth having effective control over those constraints) was unlawful by reason that such conduct was not authorised by any valid law of the Commonwealth.

The Court held, by majority, that the plaintiff was not entitled to the declaration sought. The conduct of the Commonwealth in signing the second MOU with Nauru was authorised by s 61 of the Constitution. The Court further held that the conduct of the Commonwealth in giving effect to the second MOU (including by entry into the Administrative Arrangements and the Transfield Contract) was authorised by 

s 198AHA of the Act, which is a valid law of the Commonwealth.

* This statement is not intended to be a substitute for the reasons of the High Court or to be used in any later consideration of the Court's reasons.

Transcript of full judgement can be found here. 

WHAT THE JUDGMENT MEANS…...

George Williams, Professor of Law at the University of NSW, writing in The Sydney Morning Herald on 3 February 2016:

The result was that the federal government has the power to detain people who come to our shores claiming to be a refugee. It also has the power to send those people to other countries without first determining whether their claims are correct.

Once removed, their fate is put beyond Australian law and the oversight of our courts. As Chief Justice French and Justices Kiefel​ and Nettle stated, once removed from Australia, the plaintiff is 'detained in custody under the laws of Nauru, administered by the Executive government of Nauru'.

This follows from the fact that Australian courts do not rule on what occurs within another sovereign state. This is true even if that state, as is the case with Nauru, is beholden to Australia, and has a dubious record of upholding the rule of law within its own borders. In such a case, asylum seekers can find themselves removed from Australia to what is in effect a legal black hole.

These findings of a majority of the High Court put beyond doubt the capacity of the Commonwealth to continue its offshore detention policies in Nauru.

What is striking is just how few checks now apply to these policies. There is no requirement that children are well treated, or that their best interests are safeguarded. There is also no need for asylum seekers to be treated fairly, such as by having their claims promptly and properly assessed.

By sending them to Nauru, the law enables Australia to wash its hands of such matters.

I note that the High Court ordered the Bangladeshi woman "M68" to pay the Federal Government's legal costs in this case, so not only will she and her infant be returning to an island nation of only 21 km² whose income appears to be derived in part from acting as an open-air gaol, she will go back burdened with a debt she can not possibly pay.

 

Public statement by NSW Independent Commission Against Corruption concerning the High Court decision of 15 April 2015

Found at @political_alert 

Political Cartoon Of The Month

@davpope cartoons can be purchased via Scratch! Media