| 词条 | Re Day (No 2) |
| 释义 |
| name = Re Day (No 2) | court = High Court of Australia as the Court of Disputed Returns | image = Coat of Arms of Australia.svg | date decided = 5 April 2017 | full name = In 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 | citations = {{cite AustLII|HCA|14|2017|parallelcite=}} | judges = Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon & Edelman JJ | prior actions = {{cite AustLII|HCA|2|2017|parallelcite=}} | transcripts = * 21 Nov {{cite AustLII|HCATrans|288|2016}}
| appealed from = | opinions = | Majority = | dissenting = | subsequent actions = }}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] BackgroundDay 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] Constitutional validity of electionShortly 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{{mdash}}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] JudgmentThe 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] AftermathThe 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] References1. ^1 {{cite AustLII|HCA|14|2017|litigants=Re Day (No 2) |parallelcite=}}. 2. ^1 2 Re Day [No 2]: {{cite web |url=http://www.hcourt.gov.au/assets/publications/judgment-summaries/2017/hca-14-2017-04-05.pdf |title=Judgment summary |publisher=High Court of Australia}} 3. ^{{cite web|url=http://psephos.adam-carr.net/countries/a/australia/2013/2013senatesa.txt |title=2013 Senate election: South Australia |work=Psephos Adam Carr's Election Archive}} 4. ^{{cite web|url=http://www.abc.net.au/news/2016-11-01/bob-day-resigns/7983088|title=Bob Day tenders resignation as Family First senator|date=1 November 2016|publisher=ABC News|author=Stephanie Anderson}} 5. ^{{cite news|title=The Bob Day controversy explained|url=http://www.smh.com.au/federal-politics/political-news/the-bob-day-controversy-explained-20161102-gsg06l.html|accessdate=2 November 2016|work=The Sydney Morning Herald|date=2 November 2016}} 6. ^{{cite news|last1=Green|first1=Antony|title=What Happens if Bob Day is Disqualified as a Senate Candidate?|url=http://blogs.abc.net.au/antonygreen/2016/11/what-happens-if-bob-day-is-disqualified-as-a-senate-candidate.html|accessdate=2 November 2016|work=ABC Elections|date=1 November 2016}} 7. ^{{cite AustLII|HCA|2|2017|litigants=Re Day |parallelcite=}}. (Gordon J). 8. ^{{cite news|url=https://www.theguardian.com/world/2017/jan/27/high-court-judge-rejects-key-labor-arguments-against-bob-day|title=High court judge rejects key Labor arguments against Bob Day|newspaper=The Guardian|date=27 January 2017|accessdate=27 January 2017}} 9. ^{{cite web|url=http://www.hcourt.gov.au/cases/case_c14-2016|title=Submissions, Case C14/2016|publisher=High Court of Australia|date=7 February 2017|accessdate=7 February 2017}} 10. ^{{cite news|url=https://www.theguardian.com/australia-news/2017/feb/07/bob-day-sought-arrangement-to-receive-rent-for-electorate-office-court-hears|title=Bob Day sought arrangement to receive rent for electorate office, court hears|last=Karp|first=Paul|work=The Guardian|date=7 February 2017|accessdate=7 February 2017}} 11. ^{{cite web|url=http://www.abc.net.au/news/2017-04-05/family-first-bob-day-election-ruled-invalid-by-high-court/8417204|title=Family First ex-senator Bob Day's election ruled invalid by High Court|publisher=ABC News|date=5 April 2017}} 12. ^{{cite web|url=https://auspublaw.org/2017/04/close-of-day/|last=Blackshield|first=Tony|title=Close of Day|publisher=AusPubLaw.org |date=12 April 2017|accessdate=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: {{cite Legislation AU|Cth|act|ja1903112|Judiciary Act 1903|19}}. 14. ^{{cite news |url=http://www.abc.net.au/news/2017-04-19/labor-party-to-challenge-eligiblity-of-sa-senator-elect/8452514 |title=Family First senator Lucy Gichuhi survives ALP challenge over citizenship concerns |first=Matthew |last=Doran |first2=Henry |last2=Belot |first3=Joanna |last3=Crothers |date=19 April 2017 |accessdate=19 April 2017 |publisher=ABC News}} 15. ^{{cite news|url=https://www.theguardian.com/australia-news/2017/apr/19/labor-to-challenge-family-first-candidate-lucy-gichuhis-eligibility|last=Karp|first=Paul|title=Court rebuffs Labor challenge to Family First senator Lucy Gichuhi|work=The Guardian|date=20 April 2017|accessdate=20 April 2017}} 16. ^{{cite AustLII|HCATrans|86|2017|litigants=Re Day [2017]|date=19 April 2017}}. 5 : High Court of Australia cases|Australian constitutional law|Australian court of disputed returns cases|Federal elections in Australia|2016 elections in Australia |
| 随便看 |
|
开放百科全书收录14589846条英语、德语、日语等多语种百科知识，基本涵盖了大多数领域的百科知识，是一部内容自由、开放的电子版国际百科全书。