Re Day (No 2)

Last updated

Re Day (No 2)
Coat of Arms of Australia.svg
Court High Court of Australia as the Court of Disputed Returns
Full case nameIn the matter of questions referred to the Court of Disputed Returns pursuant to section 376 of the Commonwealth Electoral Act 1918 (Cth) concerning Mr Robert John Day AO
Decided5 April 2017
Citation(s) [2017] HCA 14
Transcript(s)
Case history
Prior action(s) [2017] HCA 2
Court membership
Judge(s) sitting Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon & Edelman JJ

Re Day (No 2) [1] [2] was a significant Australian court case, decided in the High Court of Australia sitting as the Court of Disputed Returns on 5 April 2017. The case was an influential decision concerning the construction of Section 44 of the Constitution and the meaning of "indirect pecuniary interest" in an agreement with the Commonwealth. The High Court held that Bob Day's re-election to the Senate in July 2016 was invalid, since he'd had an "indirect pecuniary interest" in an agreement with the Commonwealth since at least February 2016. As a result, he had not been eligible to sit as a Senator from at least February 2016 onward by reason of section 44(v) of the Constitution. [2]

A legal case is a dispute between opposing parties resolved by a court, or by some equivalent legal process. A legal case may be either civil or criminal law. In each legal case there is an accuser and one or more defendants.

High Court of Australia supreme court

The High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the states, and the ability to interpret the Constitution of Australia and thereby shape the development of federalism in Australia.

Court of Disputed Returns (Australia)

The Court of Disputed Returns in Australia is a special jurisdiction of the High Court of Australia. This jurisdiction was initially established by Part XVI of the Commonwealth Electoral Act 1902 and is now contained in Part XXII of the Commonwealth Electoral Act 1918. The High Court sitting as the Court of Disputed Returns hears challenges regarding the validity of federal elections. The jurisdiction is twofold: (1) on a petition to the Court by an individual with a relevant interest or by the Australian Electoral Commission, or (2) on a reference by either house of the Commonwealth Parliament.

Contents

Background

Day ran as a Family First Party South Australia Senate candidate at the 2013 federal election and was successful. [3] On 1 November 2016, Day announced he had tendered his resignation to the President of the Australian Senate, with immediate effect, following the liquidation of Home Australia Group, a building company founded and managed by Day. [4]

Family First Party Australian political party (2001-17)

The Family First Party was a conservative political party in Australia from 2002 to 2017. It was founded in South Australia and enjoyed its greatest electoral support in that state.

2013 Australian federal election Election held on 7 September 2013

A federal election to determine the members of the 44th Parliament of Australia took place on 7 September 2013. The centre-right Liberal/National Coalition opposition led by Opposition leader Tony Abbott of the Liberal Party of Australia and Coalition partner the National Party of Australia, led by Warren Truss, defeated the incumbent centre-left Labor Party government of Prime Minister Kevin Rudd by a 17-seat 3.6 percentage point two-party swing. Labor had been in government since the 2007 election. Abbott was sworn in by the Governor-General, Quentin Bryce, as Australia's 28th Prime Minister on 18 September 2013, along with the Abbott Ministry and the members of the House of Representatives. The 44th Parliament of Australia opened on 12 November 2013, which is taken to be the commencement of the term of members of the House of Representatives. The new senators were sworn in by the next Governor-General Peter Cosgrove on 7 July 2014, with their six-year terms commencing on 1 July.

Constitutional validity of election

Shortly after Day's resignation, the government announced that it would move in the Senate to refer to the High Court the matter of the validity of Day's election in July 2016 in regard to a possible breach of section 44(v) of the Constitution, which provides that a person who "has any direct or indirect pecuniary interest in any agreement with the Public Service of the Commonwealth" (and s 44 continues) "shall be incapable of being chosen or of sitting" as a member of either house of the Parliament—and it follows that they are ineligible to be nominated for election to either house. The basis of the complaint was that, at Day's request, his Commonwealth-funded electorate office was by lease of part of a building in Adelaide that he indirectly owned, so that the Commonwealth's payments of rent would eventually come into a bank account of his own. [5] [6]

Section 44 of the Australian Constitution lists the grounds for disqualification on who may become a candidate for election to the Parliament of Australia. It has generally arisen for consideration by the High Court sitting in its capacity as the Court of Disputed Returns. It has been reviewed several times, but has not been amended. Following several disqualifications under sub-section 44(i), a new review of the whole section was instituted on 28 November 2017.

Judgment

The High Court, sitting as the Court of Disputed Returns, held a preliminary hearing before Gordon J, whose judgment delivered on 27 January 2017 made numerous findings of fact. [7] [8] The case was heard on 7 February by a full court of the High Court, [9] [10] which delivered its judgment on 5 April.

The Court found that, since 26 February 2016 (although three judges were prepared to say 1 December 2015), Day had had an "indirect pecuniary interest" in an agreement with the Commonwealth, and thus was in violation of section 44(v). This was despite the fact that Commonwealth public servants, perceiving a conflict with section 44(v), had not made any payments of rent; Day's "interest" was constituted by his arranged entitlement to receive monies from any rent that was paid. Consequently, the Court found that Day was ineligible to serve in the Senate as of 26 February 2016, and he was therefore ineligible to nominate for the federal election of 2 July 2016. The Court declared Day's seat vacant and ordered that a special recount of South Australian ballot papers be held to determine his replacement, which the Court envisaged would be the other person on the Family First list in that election, Lucy Gichuhi. [1] [2] [11] [12]

2016 Australian federal election Election held on 2 July 2016

The 2016 Australian federal election was a double dissolution election held on Saturday 2 July to elect all 226 members of the 45th Parliament of Australia, after an extended eight-week official campaign period. It was the first double dissolution election since the 1987 election and the first under a new voting system for the Senate that replaced group voting tickets with optional preferential voting.

Lucy Gichuhi Australian politician

Lucy Muringo Gichuhi is an Australian politician and a Liberal Party Senator for South Australia. She was declared to have been elected at the 2016 election for the Family First Party following a special recount on 13 April 2017 ordered by the High Court of Australia, sitting as the Court of Disputed Returns, following its decision that Bob Day had not been eligible to stand for election. Gichuhi originally sat in the Senate as an Independent, after refusing to join the Australian Conservatives, which merged with the Family First Party. In February 2018, she announced she had joined the governing Liberal/National Coalition, sitting in the Liberal Party.

Aftermath

The Australian Labor Party lodged a challenge, claiming that Gichuhi might still be a citizen of Kenya, hence ineligible under Constitution section 44(i) as a citizen of a "foreign power". On 19 April 2017 a full court of the High Court, [13] found that the objection had not been made out and declared Gichuhi elected. [14] [15] [16]

Australian Labor Party Political party in Australia

The Australian Labor Party is a major centre-left political party in Australia. The party has been in opposition at the federal level since the 2013 election. The party is a federal party with branches in each state and territory. Labor is in government in the states of Victoria, Queensland, Western Australia, and in both the Australian Capital Territory and Northern Territory. The party competes against the Liberal/National Coalition for political office at the federal and state levels. It is the oldest political party in Australia.

Related Research Articles

Australian Senate upper house of the Australian Parliament

The Senate is the upper house of the bicameral Parliament of Australia, the lower house being the Australian House of Representatives. The composition and powers of the Senate are established in Chapter I of the Constitution of Australia. There are a total of 76 Senators: 12 are elected from each of the six Australian states regardless of population and 2 from each of the two autonomous internal Australian territories. Senators are popularly elected under the single transferable vote system of proportional representation.

Parliament of Australia legislative branch of the Commonwealth of Australia

The Parliament of Australia is the legislative branch of the government of Australia. It consists of three elements: the Crown, the Senate and the House of Representatives. The combination of two elected chambers, in which the members of the Senate represent the states and territories while the members of the House represent electoral divisions according to population, is modelled on the United States Congress. Through both chambers, however, there is a fused executive, drawn from the Westminster system.

In the Parliament of Australia, a casual vacancy arises when a member of either the Senate or the House of Representatives:

Fiona Nash Australian politician

Fiona Joy Nash is a former Australian politician. She represented the National Party of Australia in the Australian Senate for the state of New South Wales from 1 July 2005 and served as the Deputy Leader of the Nationals in the Parliament of Australia from 11 February 2016, having previously served as the party's deputy Senate leader since 2008.

Bob Day Australian politician

Robert John Day is an Australian former politician and businessman who was a Senator for South Australia from 1 July 2014 to 1 November 2016. He is a former federal chairman of the Family First Party. Before entering politics, he worked in the housing industry, owning several businesses, and at one stage serving as president of the Housing Industry Association.

David Arthur Gillespie is an Australian politician and gastroenterologist. He has been a Nationals member of the House of Representatives since 2013, representing the Division of Lyne in New South Wales. Gillespie has served as the Assistant Minister for Children and Families since December 2017 in the Second Turnbull Ministry. He has previously served as the Assistant Minister for Rural Health between July 2016 and January 2017, and as the Assistant Minister for Health between January and December 2017.

Section 46 of the Constitution of Australia provides that if a Senator or member of the House of Representatives is constitutionally ineligible or disqualified from holding that position, they will be liable to pay any person who sues for it 100 pounds for every day that they have sat. With the introduction of the Australian dollar on 14 February 1966, where 100 pounds equaled A$200.

Members of the Australian Senate, 2016–2019 Wikimedia list article

This is a list of members of the Australian Senate following the 2016 Australian federal election held on 2 July 2016. The election was held as a consequence of a double dissolution in which both houses of parliament were dissolved. Ordinarily, only half of the senators terms end at each election. In this case, all 76 senators were elected. At the first sitting following the election, half of the senators representing each of the six states of Australia were allocated six-year terms to end on 30 June 2022, with the remainder allocated three-year terms to end on 30 June 2019. The terms of senators from the Australian Capital Territory and the Northern Territory end on the day of the next federal election.</ref>

Results of the 2016 Australian federal election (Senate)

The 2016 Australian federal election in the Senate was part of a double dissolution election held on Saturday 2 July to elect all 226 members of the 45th Parliament of Australia, after an extended eight-week official campaign period. It was the first double dissolution election since the 1987 election and the first under a new voting system for the Senate that replaced group voting tickets with optional preferential voting.

Rodney Norman Culleton is an Australian politician who was sworn in and sat as a Senator for Western Australia following the 2016 federal election. At that time he was a member of the Pauline Hanson's One Nation party, but on 18 December 2016 he resigned from the party to sit as an independent.

<i>Re Culleton</i> (No 2)

Re Culleton was a significant Australian court case, decided in the High Court of Australia sitting as the Court of Disputed Returns on 3 February 2017. The case was an influential decision concerning the construction of Section 44(ii) of the Constitution, which held that Rod Culleton's conviction for larceny meant that he was incapable of being chosen as a Senator and the subsequent annulment of that conviction did not operate retroactively to deny the legal effect to the conviction from the time that it was recorded.

45th Parliament of Australia federal parliamentary term in Australia from 2016 to 2019

The 45th Parliament of Australia was a meeting of the legislative branch of the Australian federal government, composed of the Australian Senate and the Australian House of Representatives. It met in Canberra from 30 August 2016 to 4 April 2019. The 2016 general election held on 2 July gave the Coalition of the Liberal and National Parties control of the House, albeit with a slimmer majority than the 44th Parliament, allowing their leader Malcolm Turnbull to stay in office as the 29th Prime Minister of Australia. During the term of the parliament, the government slipped into minority due to defections and by-elections. The leadership of the government also changed during the parliament, when Scott Morrison replaced Turnbull as Liberal leader and Prime Minister in August 2018. The 45th Parliament was officially dissolved by the Governor-General Sir Peter Cosgrove at 8:29AM on 11 April 2019.

2017–18 Australian parliamentary eligibility crisis

In 2017, the eligibility of several members of the Parliament of Australia to be elected was questioned. Referred by some as a "constitutional crisis", fifteen sitting politicians were ruled ineligible by the High Court of Australia or resigned pre-emptively. The situation arose from section 44(i) of the Australian Constitution, which prohibits parliamentarians from having allegiance to a foreign power, especially citizenship. On that basis, the High Court previously held that dual citizens are ineligible for election unless they have taken "reasonable steps" to renounce the foreign citizenship before nomination.

<i>Alley v Gillespie</i>

Alley v Gillespie, was a significant decision of the High Court of Australia that considered the purpose and scope of s 46 of the Australian Constitution. It was the first application brought under the Common Informers Act 1975 (Cth).

Hollie Hughes is an Australian politician who was elected as a Senator for New South Wales at the 2019 federal election. She is a member of the Liberal Party.

References

  1. 1 2 Re Day (No 2) [2017] HCA 14.
  2. 1 2 3 Re Day [No 2]: "Judgment summary" (PDF). High Court of Australia.
  3. ↑ "2013 Senate election: South Australia". Psephos Adam Carr's Election Archive.
  4. ↑ Stephanie Anderson (1 November 2016). "Bob Day tenders resignation as Family First senator". ABC News.
  5. ↑ "The Bob Day controversy explained". The Sydney Morning Herald. 2 November 2016. Retrieved 2 November 2016.
  6. ↑ Green, Antony (1 November 2016). "What Happens if Bob Day is Disqualified as a Senate Candidate?". ABC Elections. Retrieved 2 November 2016.
  7. ↑ Re Day [2017] HCA 2. (Gordon J).
  8. ↑ "High court judge rejects key Labor arguments against Bob Day". The Guardian. 27 January 2017. Retrieved 27 January 2017.
  9. ↑ "Submissions, Case C14/2016". High Court of Australia. 7 February 2017. Retrieved 7 February 2017.
  10. ↑ Karp, Paul (7 February 2017). "Bob Day sought arrangement to receive rent for electorate office, court hears". The Guardian. Retrieved 7 February 2017.
  11. ↑ "Family First ex-senator Bob Day's election ruled invalid by High Court". ABC News. 5 April 2017.
  12. ↑ Blackshield, Tony (12 April 2017). "Close of Day". AusPubLaw.org. Retrieved 12 April 2017.
  13. ↑ The court consisted of Justice Gordon, who had been deputed to approve the recount, and Justice Nettle; two Justices are the minimum necessary to constitute a full court of the High Court: Judiciary Act 1903 (Cth) s 19.
  14. ↑ Doran, Matthew; Belot, Henry; Crothers, Joanna (19 April 2017). "Family First senator Lucy Gichuhi survives ALP challenge over citizenship concerns". ABC News . Retrieved 19 April 2017.
  15. ↑ Karp, Paul (20 April 2017). "Court rebuffs Labor challenge to Family First senator Lucy Gichuhi". The Guardian. Retrieved 20 April 2017.
  16. ↑ Re Day [2017] [2017] HCATrans 86 (19 April 2017).


This page is based on this Wikipedia article
Text is available under the CC BY-SA 4.0 license; additional terms may apply.
Images, videos and audio are available under their respective licenses.