Re Lambie [2018] HCA 6

HIGH COURT OF AUSTRALIA

KIEFEL CJ, BELL, GAGELER, KEANE, NETTLE, GORDON AND EDELMAN JJ

IN THE MATTER OF QUESTIONS REFERRED TO THE COURT OF DISPUTED RETURNS PURSUANT TO SECTION 376 OF THE COMMONWEALTH ELECTORAL ACT 1918 (CTH) CONCERNING MS JACQUI LAMBIE

Re Lambie [2018] HCA 6 Date of Order: 6 February 2018 Date of Publication of Reasons: 14 March 2018 C27/2017

ORDER

The question reserved for the consideration of the Full Court under s 18 of the Judiciary Act 1903 (Cth) be answered as follows:

Question

Is Mr Martin incapable of being chosen or of sitting as a senator by reason of s 44(iv) of the Constitution?

Answer

No, Mr Martin is not incapable of being chosen or of sitting as a senator by reason of s 44(iv) of the Constitution.

Representation

C R C Newlinds SC with P Kulevski appearing on behalf of Ms McCulloch (instructed by Holman Webb Lawyers)

P H Solomon QC with C O H Parkinson appearing on behalf of Mr Martin (instructed by Corrs Chambers Westgarth)

S P Donaghue QC, Solicitor-General of the Commonwealth with Z E Maud and B K Lim appearing on behalf of the Attorney-General of the Commonwealth (instructed by Australian Government Solicitor)

No appearance for Ms Lambie

K L Walker QC, Solicitor-General for the State of Victoria with M Hosking appearing on behalf of the Attorney-General for the State of Victoria, intervening (instructed by Victorian Government Solicitor)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Re Lambie

Constitutional law (Cth) – Parliamentary elections – Reference to Court of Disputed Returns – Where Court held there was a vacancy in representation of Tasmania in Senate – Where Court made directions for special count of ballot papers to fill vacancy – Where orders sought following special count that Mr Steven Martin be declared elected as senator to fill vacancy – Where Mr Martin held offices of mayor and of councillor of local government corporation under Local Government Act 1993 (Tas) – Whether Mr Martin incapable of being chosen or of sitting as senator by reason of s 44(iv) of Constitution – Proper construction of s 44(iv) of Constitution – Where no dispute that office of mayor or of councillor is "office of profit" – Whether office of mayor or of councillor constitutes office of profit "under the Crown".