High Court To Hear Challenge To Senate Voting Reforms On May 2

The High Court will hear the constitutional challenge to the Senate voting reforms on May 2.

The Chief Justice, Robert French, fixed the hearing date during a directions hearing today.

The challenge has been brought by South Australian Family First Senator Bob Day. His barrister is Peter King, the former Liberal MP who was defeated by Malcolm Turnbull in a 2004 preselection battle in Wentworth.

During the 22-minute hearing, it was agreed that an affidavit by Malcolm Mackerras, the election expert and psephologist, would not be used in the hearing.

The May 2 hearing is the day before the Federal Budget is delivered. It is nine days before the May 11 deadline for the calling of a double dissolution election.

The transcript of today’s hearing appears below. [Read more…]


Written Submissions Lodged For High Court Challenge To Senate Voting Reforms

These are the written submissions lodged with the High Court by Senator Bob Day and the Commonwealth, as part of the hearing of a challenge to the Senate voting reforms.

Day, a Family First senator, has brought the challenge. The matter is listed at 10.00am today for the Court to make directions as to referral to a Full Court. [Read more…]


High Court Rejects Refugee Challenge To Offshore Processing And Resettlement

The High Court has rejected an attempt to strike down Australia’s policy of offshore processing, detention and resettlement.

In essence, the High Court has found that the asylum seeker arrangements with Nauru are legal. Asylum-seekers now face deportation to Nauru and Papua New Guinea.

The court found that the Bangladeshi woman who brought the case had standing but rejected her substantive argument. [Read more…]


High Court Formally Voids WA Senate Result; No Date Yet On New Poll

The High Court’s Justice Kenneth Hayne, sitting as the Court of Disputed Returns, today formally declared the Western Australian Senate election void, paving the way for a new election in April or May.

The Court ruled that the loss of 1370 ballot papers during the second count meant that those electors had been denied a vote. It rejected arguments that it should endorse either of the two counts, as well as arguments that it should substitute a “patchwork” of results from both counts.

A writ for the Senate election now needs to be issued by the Governor of Western Australia. By convention, state Governors accept the advice of the Governor-General on when to call Senate elections. This means that the election date, as usual, will be decided by the Abbott government.

The election must be held by May at the latest, in order to allow time for the votes to be counted and a result declared so that new senators can take their place on July 1. [Read more…]


High Court Voids Western Australian Senate Election; New Poll Looms

The High Court, sitting as the Court of Disputed Returns, has declared void last year’s Senate election in Western Australia, necessitating a new election by May.

Justice Hayne ruled that 1,370 electors were denied a vote as a consequence of the Australian Electoral Commission losing their ballot papers.

The Court ruled that it was precluded by the Commonwealth Electoral Act from considering the results of earlier scrutinies of the lost ballot papers. It found that it was inevitable that the loss probably affected the result of the election since the number of ballot papers lost far exceeded the margin between the candidates at the crucial stages in the count.

“The only relief appropriate is for the election to be declared void,” the Court said.

It is now up to the federal government to decide when the new election will be held. Whilst the writs for Senate elections are issued by state Governors, this is usually done on the advice of the Governor-General.

There must be 33 days between the issue of the writ and polling day which means an election will be held between late-March and mid-May. The government may not desire a Senate election around the time of the May Budget so April seems most likely.

Statement from the High Court.

THE AUSTRALIAN ELECTORAL COMMISSION v JOHNSTON & ORS

WANG v JOHNSTON & ORS

MEAD v JOHNSTON & ORS

[2014] HCA 5

Today the High Court, sitting as the Court of Disputed Returns, answered questions of law arising in three petitions which dispute the election of six senators for the State of Western Australia to serve in the Senate of the Parliament of the Commonwealth. [Read more…]


High Court Throws Out NSW Election Donation Laws; Victory For Unions And Corporations

The High Court has upheld a challenge to New South Wales’s election donation laws.

The challenge was brought by Unions NSW to the changes legislated by the O’Farrell government in 2012.

The effect of the challenge is to invalidate the changes and make it legal for unions and corporations to donate to political parties. Money spent on election advertising by unions affiliated to the ALP will now not be included in the ALP’s expenditure limits. [Read more…]


High Court Invalidates ACT Same-Sex Marriage Law; Decision Unanimous

The High Court has thrown out the Australian Capital Territory’s same-sex marriage law.

In a strikingly definitive decision, the Justices voted 6-0 to invalidate the ACT’s Marriage Equality (Same Sex) Act 2013 (ACT). They said: “The whole of the ACT Act is of no effect.”

The court found that the whole of the ACT Act is inconsistent with the Commonwealth’s Marriage Act 1961 (Cth).

The court found that the Commonwealth has the power under Section 51(xxi) of the Constitution to define marriage. The Marriage Act (1961) was amended by the Howard government to define marriage as solely between a man and a woman. Today’s decision permits that definition to include same-sex couples.

Politically, the High Court’s decision upholds the Commonwealth’s power under Section 51. It denies states and territories the power to legislate for same-sex marriages but clears the way for the Commonwealth to do so. Whilst proponents of “marriage equality” may be disappointed with the decision, in fact it also removes a potential challenge to any future decision of the Commonwealth Parliament to legalise same-sex marriage. The next step lies in the hands of the government, the House of Representatives and the Senate.

Statement from the High Court of Australia.

THE COMMONWEALTH OF AUSTRALIA v THE AUSTRALIAN CAPITAL TERRITORY [2013] HCA 55

Today the High Court decided unanimously that the Marriage Equality (Same Sex) Act 2013, enacted by the Legislative Assembly for the Australian Capital Territory, cannot operate concurrently with the federal Marriage Act 1961. The Court held that the federal Parliament has power under the Australian Constitution to legislate with respect to same sex marriage, and that under the Constitution and federal law as it now stands, whether same sex marriage should be provided for by law is a matter for the federal Parliament. [Read more…]