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Law Society Northern Territory

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Issue no. 1

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Law Society Northern Territory

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N O T I C E B O A R D L A W S O C I E T Y N T C O N S T I T U T I O N A L L A W 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 s 44(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 s 44(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. C R I M I N A L L A W Appeal against conviction Fresh and compelling evidence In Van Beelen v The Queen [2017] HCA 48 (8 November 2017) the High Court considered s 353A 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 victims 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 twenty 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 Crowns original evidence about the time of death. Bell, Gageler, Keane, Nettle and Edelman JJ jointly. Appeal from the Supreme Court (SA) dismissed.