Kiefel CJ
Bell J
Keane J
Nettle J
Gordon J
2.
Court of Disputed Returns. On 7 December 2017, pursuant to s 377 of the Commonwealth Electoral Act 1918 (Cth), the President of the Senate transmitted the following questions for the determination of the Court of Disputed Returns:
(a) whether, by reason of s 44(i) of the Constitution, there is a vacancy in the representation for the Australian Capital Territory in the Senate for the place for which Katy Gallagher was returned;
(b) if the answer to Question (a) is "yes", by what means and in what manner that vacancy should be filled;
(c) what directions and other orders, if any, should the Court make in order to hear and finally dispose of this reference; and
(d) what, if any, orders should be made as to the costs of these proceedings.
6 The Commonwealth Attorney-General and Senator Gallagher were each deemed to be a party to the reference pursuant to orders made by Kiefel CJ[1] and made submissions as to the questions.
Sykes v Cleary; Re Canavan
7 The words "subject" and "citizen" of a foreign power, which appear in s 44(i), connote the existence of a state of affairs involving the existence of a status, or of rights referable to such a status, under the law of the foreign power[2]. The second limb of s 44(i) is concerned with the existence of a duty by a person to a foreign power as an aspect of the status of citizenship[3].
8 In Re Canavan[4] this Court held that, subject only to an implicit qualification in s 44(i), to which reference will shortly be made, the words of
- ↑ Commonwealth Electoral Act 1918 (Cth), s 378.
- ↑ Sykes v Cleary (1992) 176 CLR 77 at 107, 110, 131; Re Canavan (2017) 91 ALJR 1209 at 1215 [21]; 349 ALR 534 at 540.
- ↑ Sykes v Cleary (1992) 176 CLR 77 at 109–110; Re Canavan (2017) 91 ALJR 1209 at 1216 [26]; 349 ALR 534 at 541.
- ↑ (2017) 91 ALJR 1209 at 1214 [13], 1215 [19], 1223 [71]–[72]; 349 ALR 534 at 539, 540, 551.
