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High Court judgments

High Court judgments

Constitutional law

Section 44(i) – Parliamentary Elections – qualification to be elected

In Re Canavan; Re Ludlam; Re Waters; Re Roberts [No 2]; Re Joyce; Re Nash; Re Xenophon [2017] HCA 45 (27 October 2017) the High Court considered the proper interpretation of s44(i) of the Constitution and whether persons referred to the Court were incapable of being chosen or sitting as a Senator or Member of Parliament. The ultimate question was whether any of the referred persons were “under any acknowledgment of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power” as at the time of their nomination to the Parliament. Four different constructions of s44(i) were argued. Three of those impliedly included a mental element informing the acquisition or maintenance of foreign citizenship, but varied with respect to the degree of knowledge required and whether a voluntary act of acquiring or retaining foreign citizenship was necessary. The Court rejected those approaches, holding that knowledge of foreign citizenship was not required for a person to come within s44(i). The Court also held that the reasonableness of steps taken by candidates to inquire as to whether their personal circumstances gave rise to disqualification under s44(i) was immaterial to the operation of s44(i). The only question was whether a person had the status of foreign subject or citizen, as determined by the law of the foreign power in question. If a person had that status when they nominated, they would be disqualified unless the foreign law in question is contrary to the “constitutional imperative” that an Australian citizen not be irremediably prevented from participation in representative government. That exception is engaged where a person can show that they took all steps within their power and that are reasonably required by the foreign law to renounce his or her citizenship. The Court went on to apply these principles to the facts of the references. The Court held that Mr Ludlam, Ms Waters, Senator Roberts, Mr Joyce MP and Senator Nash were disqualified; Senator Canavan and Senator Xenophon were not disqualified. Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ jointly. Answers to Questions Referred given.

Criminal law

Appeal against conviction – fresh and compelling evidence

In Van Beelen v The Queen [2017] HCA 48 (8 November 2017) the High Court considered s353A of the Criminal Law Consolidation Act 1935 (SA), which allows the Full Court of the South Australian Supreme Court to determine a second or subsequent appeal against conviction where there is fresh and compelling evidence that should, in the interests of justice, be considered. The appellant was convicted of the murder of a schoolgirl in 1973. Appeals against conviction were dismissed. After a petition for mercy, the case was referred to be heard as if on appeal. That appeal was also dismissed. The new appeal concerned evidence relied on by the Crown at trial, which specified the time of death based on gastric emptying (the speed at which food is processed by the body). That evidence had been relevant in putting the appellant at the scene of the victim’s death. It was argued that scientific research since the 1970s showed the inaccuracy of the gastric emptying technique, undermining the evidence placing the appellant at the scene. The Full Court accepted that the evidence was fresh, but held it was not “compelling” because it only confirmed evidence given at the trial by an opposing defence expert. The High Court unanimously held that the evidence was compelling and should have been considered in the interests of justice. It went on to review the evidence, finding that there was a window of about 20 minutes after the appellant left the scene, during which it could not be excluded that the deceased had died. However, the Court held that this did not significantly reduce the improbability of a person other than the appellant being the killer. There was not a significant possibility that a properly instructed jury, acting reasonably, would have acquitted the appellant even absent the Crown’s original evidence about the time of death. Bell, Gageler, Keane, Nettle and Edelman JJ jointly. Appeal from the Supreme Court (SA) dismissed.

Family law

Pre and post-nuptial agreements – undue influence and unconscionable conduct

In Thorne v Kennedy [2017] HCA 49 (8 November 2017) the High Court held that pre and post-nuptial agreements in substantially identical terms should be set aside. The appellant was an Eastern European woman with almost no assets. The respondent was an Australian property developer with assets of between $18 and 24 million. The couple met online and the appellant came to Australia to be with the respondent. The respondent told the appellant that he would marry her if he liked her, but she “would have to sign paper”. The appellant did not see the content of the pre-nuptial agreement until about 10 days before the wedding. She obtained independent advice to the effect that the agreement should not be signed and protected only the interests of the respondent. By this time, the wedding arrangements were made, including guests having flown in from overseas. There was also evidence that the appellant believed she had no choice but to sign the agreement, which she did four days before the wedding. The post-nuptial agreement in the same terms was signed shortly after the wedding. The couple separated approximately four years later. The appellant sought to have the agreements set aside as void for duress, undue influence or unconscionable conduct. The Federal Circuit Court at first instance set the agreements aside; those orders were overturned by the Full Family Court. The High Court reinstated the original orders. The Court upheld the factual findings of the primary judge and overturned a ruling of the Full Court that there was a fair and reasonable outcome available. The Court said that the vitiating factors were better described as undue influence than duress, so there was no need to assess the extent to which the pressure came from the respondent, nor whether the pressure exerted was improper or illegitimate. It was open to the judge to find that the appellant considered that she had no choice or was powerless other than to enter the agreements. Kiefel CJ, Bell, Gageler, Keane and Edelman JJ held that the agreements were void for undue influence and unconscionable conduct. Nettle J concurred. Gordon J held that the agreements were vitiated by unconscionable conduct only. Appeal from the Full Family Court allowed.

Administrative law

Appeal from Supreme Court of Nauru – migration

In HMF045 v The Republic of Nauru [2017] HCA 50 (15 November 2017) the High Court held that the Nauru Refugee Status Review Tribunal (Tribunal) failed to accord the appellant procedural fairness. The appellant is a Nepalese citizen who sought refugee status in Nauru after being transferred there under regional processing arrangements. The application was refused by the Secretary of the Department of Justice and Border Control of Nauru. An appeal to the Tribunal was dismissed. An appeal to the Supreme Court was also dismissed. In coming to its conclusion, the Tribunal referred to a report published on the website of the Nepalese army. The appellant argued that he had been denied procedural fairness because the report had not been put to him. He also argued that the Tribunal had applied the wrong test in determining his complementary protection claim. The Court held that the Tribunal had erred by not putting the appellant on notice of the significance that it proposed to attach to aspects of the report and giving him the opportunity to address the issue. The Court rejected the argument that the wrong test had been applied. There was no reason to decline relief. The decision was quashed and sent back to the Tribunal for reconsideration. Bell, Keane and Nettle JJ jointly. Appeal from the Supreme Court (Nauru) allowed.

Constitutional law

Section 44(iv) – qualification to be elected – holding an office of profit under the Crown

In Re Nash [No 2] [2017] HCA 52 (orders 15 November 2017, reasons 6 December 2017) the High Court held that Hollie Hughes was disqualified from being elected as a Senator for New South Wales to fill the vacancy left by the disqualification of Senator Fiona Nash. Ms Hughes failed to win a seat in the Senate after contesting the 2016 election. On 1 July 2017, she was appointed as a part-time member of the Administrative Appeals Tribunal (AAT). On 27 October 2017, the High Court declared Ms Nash to be disqualified from being elected as a Senator, with the vacancy to be filled by a special count of the ballots. That same day, Ms Hughes resigned her position in the AAT. Ms Hughes was ascertained to be the candidate that should fill the vacancy left by Ms Nash. The Attorney-General for the Commonwealth sought an order that Ms Hughes be declared duly elected as a Senator. The issue before the Court was whether Ms Hughes was “incapable of being chosen” pursuant to s44(iv) of the Constitution because she held an office of profit under the Crown. There was no dispute that her position with the AAT was an office of profit; the issue was whether the “incapability” imposed by s44(iv) extended past the original day of polling to the time Ms Nash was disqualified. The Court held that the processes by which electors choose Members of Parliament and Senators do not end with polling, but continue until a candidate is determined. That would normally end with the declaration of the result. In this case, however, because of the disqualification of Ms Nash, the process of choice had not been completed. In the intervening time, Ms Hughes accepted an office that disqualified her from being chosen as a Senator. Accordingly, the Court refused to make the order sought. Kiefel CJ, Bell, Gageler, Keane, and Edelman JJ jointly. Answers to Questions Referred given.


Andrew Yuile is a Victorian barrister, ph (03) 9225 7222, email The full version of these judgments can be found at

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