Re Day [2017] HCA 2: Senate Eligibility and Court of Disputed Returns
Monday 30 January 2017 @ 12.09 p.m. | Legal Research
Last Friday (27 January 2017), the High Court of Australia delivered judgment from a single justice in the case of Re Day [2017] HCA 2. The hearing was to determine questions forwarded by the Court of Disputed Returns.
Background to the Case
On 12 December 2016 Justice Gordon, sitting as the Court of Disputed Returns, referred to a Full Court, pursuant to s 18 of the Judiciary Act 1903 (Cth), the following questions transmitted by the Senate on Tuesday, 8 November 2016 pursuant to s 377 of the Commonwealth Electoral Act 1918 (Cth) (Electoral Act):
- whether, by reason of s 44(v) of the Constitution, or for any other reason, there is a vacancy in the representation of South Australia in the Senate for the place for which Robert John Day was returned;
- if the answer to Question (a) is “yes”, by what means and in what manner that vacancy should be filled;
- whether, by reason of s 44(v) of the Constitution, or for any other reason, Mr Day was at any time incapable of sitting as a Senator prior to the dissolution of the 44th Parliament and, if so, on what date he became so incapable;
- what directions and other orders, if any, should the Court make in order to hear and finally dispose of this reference; and
- what, if any, orders should be made as to the costs of these proceedings.
An issue raised by the reference is whether Mr Day had a direct or indirect pecuniary interest, of a kind prohibited by s44(v) of the Constitution, in a lease agreement between the owner of his electorate office premises in South Australia, as lessor, and the Commonwealth, as lessee.
On 21 November 2016 Chief Justice French made orders that Mr Robert Day, the Attorney-General of the Commonwealth and Ms Anne McEwen be heard on the hearing of the reference and be deemed to be parties to the reference pursuant to s 378 of the Electoral Act.
The Court of Disputed Returns
The powers of the Court of Disputed Returns are set out in Part XXII of the Electoral Act. Division 2 of that Part deals with references of questions as to the qualifications of a senator and as to a vacancy in the Senate. In relation to the Reference, the Court has the powers conferred by s 360 of the Electoral Act so far as they are applicable, and, in addition, has the power to declare, relevantly, that any person was not qualified to be a senator, that any person was not capable of being chosen or of sitting as a senator, and that there is a vacancy in the Senate.
Case Decision
Essentially, a decision on tender evidence, the revised tender bundle and the settlement statement were deemed necessary to be included in the further Full Court Hearing scheduled for 7 February 2017.
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