Kiefel CJ
Bell J
Gageler J
Keane J
Nettle J
Gordon J
Edelman J
41.
have split allegiance, it does not appear that Senator Xenophon's status as a BOC entailed any reciprocal obligation of allegiance to the United Kingdom per se or to Her Majesty the Queen in right of the United Kingdom.
For the purposes of s 44(i), Senator Xenophon was not a subject or a citizen of the United Kingdom at the date of his nomination and election as a senator. Nor was he entitled to the rights and privileges of a subject or citizen of the United Kingdom. Accordingly, there is no vacancy in the representation of South Australia in the Senate for the place for which Senator Xenophon was returned.
Filling the vacancies
On the proper construction of s 44(i), it operated to render Senator Nash, Senator Roberts, Mr Ludlam, Ms Waters and Mr Joyce MP incapable of being chosen at the 2016 election.
In each of the references concerning Senators Nash and Roberts, and Ms Waters and Mr Ludlam, the question arises as to the order that should be made to fill the resulting vacancy in the Senate.
In this regard, it was not suggested that the taking of a further poll was necessary; and there is no reason to suppose that a special count of the ballots would "result in a distortion of the voters' real intentions"[1] rather than a reflection of "the true legal intent of the voters so far as it is consistent with the Constitution and the [Commonwealth Electoral Act]"[2]. Accordingly, in each of those cases, votes cast "above the line" in favour of the party that nominated the candidate should be counted in favour of the next candidate on that party's list.
In the reference concerning Mr Joyce MP, it was common ground, and consistent with authority[3], that in the event that Mr Joyce MP was incapable of
- ↑ Sykes v Cleary (1992) 176 CLR 77 at 102. See also Free v Kelly (1996) 185 CLR 296 at 302–304; [1996] HCA 42.
- ↑ In re Wood (1988) 167 CLR 145 at 166.
- ↑ Sykes v Cleary (1992) 176 CLR 77 at 102, 108, 130–131, 132; Free v Kelly (1996) 185 CLR 296 at 303–304. Cf In re Wood (1988) 167 CLR 145 at 165–166.
