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…]


Would A Double Dissolution In Early 2014 Be Unconstitutional?

Tony Abbott has made it clear that the first legislative act of his government after September 14 will be to introduce legislation to repeal the carbon tax.  The mining tax is also up for repeal.

The obstacle in Abbott’s path is the composition of the Senate.  Until July 1 next year, the balance of power in the Senate remains with the Australian Greens.  Without the support of their 9 senators, neither the ALP (31 senators) nor the coalition (34 senators) can command the 39 votes needed to win a vote.

Abbott and his shadow ministers have made it clear that they are prepared to call a double dissolution election if the Senate rejects their legislation.  This can take place if the requirements of Section 57 of the Constitution are met. [Read more…]


McHugh Calls For More Women Justices On The High Court

There should be more female justices on the High Court of Australia, according to Justice Michael McHugh.

Addressing a dinner hosted by the Western Australian Law Society, McHugh said that despite many changes in recent years, “one thing that has not changed in the High Court is the small percentage of cases argued in the Court by female advocates. Some of the finest arguments that I have heard in nearly 16 years on the Court have come from women advocates. Indeed, given the small number of appearances by female advocates, superior arguments by women advocates are disproportionately high.”

Noting that he was facing imminent compulsory retirement at age 70, and that 4 Justices would retire over the next 4 years, McHugh said: “These retirements will present the federal government with a remarkable opportunity to ensure, to adapt the words of Chief Justice McLachlin, that the composition of the High Court approaches an accurate reflection of the place of women within the judiciary, within the legal profession, and within Australian society more generally.” [Read more…]


Dyson Heydon’s Farewell Speech To The NSW Supreme Court

This is the text of the farewell speech delivered by Justice John Dyson Heydon to the NSW Supreme Court, preparatory to his elevation to the High Court of Australia.

Justice John Dyson Heydon’s farewell speech to the NSW Supreme Court.

Chief Justice, ladies and gentlemen:

In February the weather is steamy and enervating. There is a great temptation to go out as little as possible. That so many of you have undergone the ordeal of a journey to this Court on this occasion – having accomplished two trips already this week – is something for which I am deeply grateful. I particularly welcome retired judges from this Court, and judges of the Federal Court. [Read more…]


Murray Gleeson: A Changing Judiciary

This is the full text of a speech given by Murray Gleeson, Chief Justice of the High Court of Australia, to the Judicial Conference of Australia, at Uluru.

Text of speech by Murray Gleeson, Chief Justice of the High Court.

GleesonA criticism that is sometimes made of institutions, and large organizations, public and private, is that they have lost their corporate memory. One consequence is waste of effort. A lot of time is spent addressing problems that have arisen, and been solved, before. And a sense of future direction can be difficult to maintain if people do not remember where they have come from. A particular danger to which some lawyers, including some judges, are exposed comes from their propensity to express their approval of a certain state of affairs by declaring it “essential” or “fundamental”. Sometimes this is a reasoned opinion. Sometimes it is mere rhetoric. Declarations of this kind are often made without adequate knowledge of what has gone on in the past, or, what goes on in other places. People may be surprised to learn that what they regard as an indispensable part of the natural order of things is, in truth, a recent development, or may be quite different from the way things are done, by respectable people, elsewhere. They may be alarmed by aspects of current practice which are not really new, but are simply a response to problems that have been around for a long time. A corporate memory can be a useful safeguard against this kind of error. It helps to fill in the context in which changes in the judiciary may be foreseen and evaluated. [Read more…]