Gageler
J
3.
the Court of Disputed Returns a question respecting a vacancy in the place of a
Senator who allegedly lacked the qualifications of a Senator at the time of his
election or return or was allegedly then disqualified from being chosen as a
Senator, and that the Court has jurisdiction to determine the question referred
notwithstanding that it may involve a decision as to whether the Senator was duly
elected and whether the purported election of the Senator was void. The Full
Court in that case answered questions referred by the Senate to the effect that
there was a vacancy in the representation of a State in the Senate for the place for
which a named Senator was returned and that the vacancy was able to be filled
by the further counting or recounting of ballot papers cast for candidates for
election for Senators for that State at the election2. Having so answered the
questions, the Full Court adjourned the proceeding on the reference, following
which Mason CJ in the same proceeding made consequential orders under s 360,
first directing the Australian Electoral Officer for the State to undertake further
counting and recounting of the ballot-papers cast at the election for the purpose
of determining the candidate entitled to be elected to the place for which the
named Senator was returned and to report to the Court as to the candidate
identified so entitled to be elected, and ultimately declaring the candidate so
identified to be duly elected as a Senator for the State for the place for which the
named Senator was returned3.
10
Conformably with the approach in In re Wood, the Senate, by resolution
dated 7 November 2016, referred a number of questions to the Court of Disputed
Returns under Div 2. A statement of the questions on which the determination of
the Court was sought was transmitted by the President of the Senate, Senator
Parry, in a letter addressed to the Principal Registrar of the High Court on
8 November 2016. In the form in which they were stated in that letter, the
questions referred by the Senate were as follows:
"(a)
whether, by reason of s 44(ii) of the Constitution, or for any other
reason, there is a vacancy in the representation of Western
Australia in the Senate for the place for which Senator Rodney
Norman Culleton 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
2
(1988) 167 CLR 145 at 169-170.
3
(1988) 167 CLR 145 at 171-172, 175.