High Court of Australia

Re Kakoschke-Moore [2018] HCA 10

21 Mar 2018

Case Number: C30/2017


Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon, Edelman JJ


Constitutional law (Cth) – Parliamentary elections – Reference to Court of Disputed Returns – Where Ms Skye Kakoschke-Moore and Mr Timothy Storer nominated for election as senator for State of South Australia as nominees of Nick Xenophon Team ("NXT") – Where Ms Kakoschke-Moore listed as third of four in order of NXT candidates, before Mr Storer – Where Ms Kakoschke-Moore returned as elected – Where Ms Kakoschke-Moore was British citizen at time of nomination – Where Ms Kakoschke-Moore subsequently renounced British citizenship – Where Mr Storer ceased to be member of NXT – Where Ms Kakoschke-Moore held incapable of being chosen or of sitting by reason of s 44(i) of Constitution – Whether vacancy in Senate should be filled by declaring Ms Kakoschke-Moore as elected – Whether Ms Kakoschke-Moore should be included in special count – Whether Mr Storer should be excluded from special count.

Words and phrases – "above the line", "electoral choice", "electoral process", "incapable of being chosen or of sitting", "political party", "process of being chosen", "special count", "true legal intent of the voters".

Constitution – ss 15, 44.

Commonwealth Electoral Act 1918 (Cth) – ss 162, 166, 168, 169, 181(2), 239, 269, 272, 360(1)(vi), 376.

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