High Court of Australia

Re Nash [No 2] [2017] HCA 52

6 Dec 2017

Case Number: C17/2017

Before

Kiefel CJ, Bell, Gageler, Keane, Edelman JJ

Catchwords

Constitutional law (Cth) – Parliamentary elections – Reference to Court of Disputed Returns – Where Court held there was a vacancy in representation of New South Wales in Senate – Where Court made directions for special count of ballot papers to fill vacancy – Where orders sought following special count that Ms Hollie Hughes be declared elected as senator to fill vacancy – Where Ms Hughes nominated for election to Senate at 2016 general election – Where Ms Hughes not declared elected following polling for 2016 general election – Where Ms Hughes appointed to Administrative Appeals Tribunal one year after 2016 general election – Where Ms Hughes resigned from that position upon Court holding there was a vacancy in representation of New South Wales in Senate – Where that position was "office of profit under the Crown" within meaning of s 44(iv) of Constitution – Whether holding position for that period rendered Ms Hughes "incapable of being chosen" as a senator under s 44(iv) of Constitution.

Constitutional law (Cth) – Parliamentary elections – Reference to Court of Disputed Returns – Jurisdiction of Court to determine whether a person sought to be declared elected to fill a vacancy is disqualified under s 44 of Constitution.

Words and phrases – "electoral choice", "electoral process", "hiatus", "incapable of being chosen", "nomination", "office of profit under the Crown", "polling", "process of being chosen", "scrutiny", "special count", "vacancy".

Constitution – ss 7, 10, 12, 13, 15, 24, 30, 31, 41, 44, 44(i), 44(iv), 45, 45(i), 51(xxxvi).

Administrative Appeals Tribunal Act 1975 (Cth) – s 15(1).

Commonwealth Electoral Act 1918 (Cth) – ss 102(4), 152, 152(1)(a), 152(1)(b), 152(1)(c), 152(1)(d), 155, 156(1), 157, 159, 167(1), 170(2)(a)(i), 175(1), 175(2), 176(1), 177(1), 220, 283(1), 360, 360(1)(vi), 374(ii), 376, 378, 379.

Remuneration Tribunal Act 1973 (Cth) – s 7.
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