Saturday, July 15, 2017

Scott Ludlam Mess Scores Four Bob Days Out Of Five

Well here we go again.  After the departures of Senators-who-sort-of-never-were Rod Culleton and Bob Day we've lost another one.  After nine years in the Senate, one of the sharper minds in the place, Greens Senator Scott Ludlam, has suddenly realised he has been a dual New Zealand citizen all along and was never validly elected in the first place.  That sound you heard all afternoon was at least 200,000 Greens supporters banging their heads on the nearest available tree in disbelief.  As for me, I was so distracted by this situation that I needlessly got off a bus in the middle of Hobart city, forgetting it continued past a common stopping point to much closer to home.  No problem though, since I then managed to beat the bus to its next stop on foot and catch the same bus again.  Ludlam's path to getting his seat back, should he want to, would be rather less straightforward.

For the most part this one is a familiar situation.  Although Ludlam has resigned, the fact that he has raised eligibility issues as his reason for doing so should prompt an immediate referral to the Court of Disputed Returns (the High Court in theory though it may well get kicked downstairs to the Federal Court if there are no new legal issues) to determine whether Ludlam was validly elected in the first place (to which the answer is evidently no) and to supervise the filling of the vacancy.  The vacancy will be filled by a recount (called a "special count") as with the vacancies for Day and Culleton.  The Greens won two seats in the original election and in the Culleton recount, beating the WA Nationals' Kado Muir by 25175 votes in both cases.  The recount could shave a few thousand off this (about 2800 personal votes for Ludlam leak out of the Greens ticket based on the original counts) but there's no doubt the Greens would keep two seats.  One of these will be their other existing Senator, Rachel Siewert, and the other will be the third candidate on the original ticket, Jordon Steele-John.

However this recount does raise some new ground. Firstly it's the first time a state will have had to be recounted for two disqualifications from the same election, meaning that the new count will be without both Culleton and Ludlam. Secondly and more interestingly, it creates previously unseen complications with the original allocation of three and six year terms. Scott Ludlam was elected third in 2016 with Rachel Siewert elected 12th.  In the special count to replace Ludlam, Siewert will be elected third and Steele-John will be elected 12th.  So if Steele-John replaces Ludlam and serves out Ludlam's term, then this will create a bizarre situation of the candidate second on the Greens ticket being a Senator for three years while the third candidate on the ticket is a Senator for the balance of six, clearly not the preference of the party's voters.

The original motion passed by the Senate to allocate the terms was:

That, pursuant to section 13 of the Constitution, the senators chosen for each state be divided into two classes, as follows:
(1) Senators listed at positions 7 to 12 on the certificate of election of senators for each state shall be allocated to the first class and receive 3 year terms.
(2) Senators listed at positions 1 to 6 on the certificate of election of senators for each state shall be allocated to the second class and receive 6 year terms.

Section 13 of the Constitution refers to the Senate meeting after each election to allocate seats but does not contain any explicit instrument for revising the allocation should it be needed to revise it. In some hypothetical cases it could be necessary to do so - multiple Senators serving different term lengths might be disqualified at the same time (or one might be disqualified and another unelected as a result, as in the Melbourne City Council Michael Caiafa case) and it might not be possible to clearly identify who had taken whose seat from the original count.  Mostly the opinions I am seeing are that the Senate can (and/or will have to) recommit the matter and could make a fresh decision on the term lengths, but I have not yet seen anything from anyone known to me as a constitutional law expert on it.  [Update: See comments - there is significant doubt about whether a decision to reallocate Siewert's term would be constitutional.]

An important aspect of this situation is the pickle it puts the potential replacement in.  Jordon Steele-John is a 22-year old student who works in disability advocacy (for what hours or pay is not stated) and now appears to have a lucrative job opportunity should things pan out as it seems they will.  But if Ludlam wanted his seat back and the Greens wanted Ludlam to have the seat, or if the Greens wanted it to go to someone else for some reason, Steele-John would be in a very difficult situation (as was Irina Dunn, who took the seat vacated by Robert Wood's ineligibility and was kicked out of her party for her troubles).

So far, Steele-John has posted that he would want the seat to go back to the party for a decision (which would have a similar effect to a casual vacancy, assuming the WA Parliament did the right thing and backed the party's proposed replacement).  As the party might well then decide that he should keep the seat anyway, this doesn't necessarily mean he doesn't want the seat or that it will necessarily create a casual vacancy.  (If the party decided they wanted him to keep it then there would be no point in him resigning.)  At least it appears that he is eligible as he renounced his UK citizenship at age eighteen.  The Alanis factor in that one has got to hurt.  [Update: Despite earlier reports that he was not going to take up the seat, Steele-John has now said he is taking it and has the party's support to do so.]

In ten years, Scott Ludlam was elected to the Senate four times - 2007, 2013, 2014, 2016.  Second candidates who could have replaced him on recounts had the issue been discovered earlier were Alison Xamon in his first term and Dr Christine Cunningham in his second.  Kate Davis was the Greens #2 candidate in the original 2013 election but that election was voided.  Had it not been voided because of a loss of ballot papers combined with problems with the old Group Ticket system, there is even a scenario in which Ludlam's ineligibility might have caused the Greens to lose his seat altogether and unelected another party (albeit only the Sports Party) in the process.

The loss of Ludlam, if more than temporary, is a disaster for a federal Greens party already struggling with internal process issues that to this observer have been farcical (if they're really unlucky I will write about that soon).  Even if it is only temporary, it is highly embarrassing.  The right, to whom Ludlam has long been a particularly sarcastic bane, has been gleeful in response and has had a lot of fun pointing out that Ludlam had rubbed it in when Bob Day was rubbed out.

It raises the question: in the absence of any change to the Constitution to change these rules, or any electoral law change to require candidates to declare status (see Michael Maley's submission here), when will political parties learn?  This has been a known issue for decades.  How hard is it to do due diligence on all candidates before preselection by asking them simple things like "Were you born in another country?" and "If yes, what precise steps did you take to renounce your citizenship of that country?"  This shouldn't have been picked up by a member of the general public searching New Zealand records after ten years.  The party, as well as the candidate, should have been on to it.  Why weren't they?

See also Antony Green.

Update 19 July: Another One's Gone!

Astonishingly the Greens have - at least for now - lost a second Senator in the same manner with Queensland Senator Larissa Waters also resigning after finding she was a dual citizen of Canada.  This one raises no electoral complications - assuming a special count is ordered as per usual, former Democrats leader Andrew Bartlett will win the seat.  It also doesn't unsettle any of the other seat results. It is unclear whether Bartlett would take the seat or resign so Waters could be reappointed or so someone else could take it.

What this twin disaster does do is indicate a staggering degree of incompetence and complacency, over a long period, in candidate screening by the Greens. So out comes Bob Brown with excuses about the Greens being mainly reliant on volunteers - which may not be true anyway - but even if it is true ignores the fact that the Greens have a particularly enthusiastic volunteer base including a lot of very capable and educated people.  Where Brown may be getting closer to the problem is in his interview with Emma Alberici where he refers to the lack of central federal control in the party, such that the Tasmanian branch might have been across such issues but have had no way of ensuring other branches were.  (Whether those who understood the problem communicated it with other states properly then is a rock that hasn't yet been turned over here.)  This weak federalism of the Greens is also a large component of the Lee Rhiannon mess.  It's a coincidence that those issues have shown up at about the same time, but it's not a coincidence that they have both happened.

Predictably for Brown, those who quite reasonably use the Greens' inability to get their facts right on eligibility as a proxy for factual inaccuracy on other things are "involved in a venal and nasty and hateful sort of politics - knock everybody down, kick them as best you can, never let a sucker have a go, as the old saying goes." In other words they are just like St Bob on his environmental crusades against a wide range of demonised industries, except that they have a valid argument, which St Bob frequently doesn't.

It was also interesting to see this on the Facebook page of the Byron Greens:

This post has the same structure as the final paragraph of my original article, even including some of the same words like "due diligence" and "simple", but it shifts the blame from the poster's own hapless party to the Australian Electoral Commission.  Whether this is plagiarism of a sort or just coincidence (I don't know which) it is unreasonable to accuse the AEC of sloppiness for not discharging an electoral burden that the law doesn't give it.  And as Antony Green points out, it is a bad idea for the AEC to be charged with candidate screening anyway.  In the form stated by the Byron Greens above, Waters and Ludlam would both have just answered "yes" to question 2 and known no better.

Meanwhile debate about whether Section 44 needs fixing (which can only occur by referendum) is likely to increase.  Examples like Nick Casmirri's (and also Sam Dastyari spending $25,000 on legal fees) suggest that the present situation is confusing and can be very onerous for some candidates.


  1. Simple solution - to stand for Parliament you must present your Birth Certificate (plus proof of name change if any) before the AEC will accept your nomination. In the case of former overseas birth you present that Birth Certificate plus your Citizenship Certificate AND your proof of renunciation of former citizenship. Without these you can't nominate. It's not that hard really !

    1. A birth certificate showing you were born in Australia isn't always sufficient to prove Australian citizenship.

    2. True but it'll handle all/most of the issues we've ever seen. I think it's a good idea. Infact it'll actually make people check into it rather than "assuming".

  2. Kevin, I just did a long comment with quotes from s 13 and 15 of the Book of Rules, and it disappeared when I hit Preview. Can you find it in the tubes somewhere between Blogspot and Atom, or do I have to do it all over again? (Or just say feck it and not bother)

    1. Appears it is gone at your end alas - I don't get any records of previewed comments.

  3. OK here we go again, and this time I'll keep away from the preview button! Naaasty buttom!

    As someone with some claim to be a constitutional lawyer, I have to confess I have no idea about the length of terms. S 13 of the Great Book of Rules (relevant bit) says:
    "As soon as may be ... after each first meeting of the Senate following a dissolution thereof, the Senate shall divide the senators chosen for each State into two classes, as nearly equal in number as practicable;"
    Seems to say it should happen once, with no provision for adjustment of the "classes" later.
    Where a senator dies or resigns, s 15 is clear:
    "If the place of a senator becomes vacant before the expiration of his term of service, the Houses of Parliament of the State for which he was chosen, sitting and voting together, ... shall choose a person to hold the place until the expiration of the term."
    I can therefore see 2 arguments:
    Argument by analogy - vacancies arising by retrospective discovery of someone's eligibility should be treated by analogy with s 15, and the replacement senator would serve out the rest of the invalidly-chosen one's term;
    Argument from common-sense and justice (sort of): if the "classes" have been decided in the first place by order of election, they should be reassigned after a recount.
    The High Court uses both of those types of argument from time to time.
    My hunch, as of 4pm this arvo, is they'd go with the analogy to s 15. My hunch may be totally different after dinner or tomorrow.

  4. BTW, I think that make it worth about 1.5 Bob Days!

  5. Obviously, I meant "retro discovery of someone's *in*eligibility" above - but you all worked that out didn't you? And "makes it" in the second post!

  6. Thankyou! That is interesting firstly because you see some possible role for the High Court. Antony Green yesterday was quite strongly of the view that the Senate would decide the matter and it wasn't an HC matter at all. I was not sure about that though I imagine that if the Senate makes a decision and the decision is at least arguably correct then any challenger might have a tough time overturning it. It's also unclear who the challenger might be. But I wonder if the government will include the term lengths question in its referral.

    In literal pedant mode, I would argue that a casual vacancy, being a one-to-one replacement, is not really analogous with a special count, which is a rerun of the whole distribution. In practice, a special count will nearly always result in one-to-one replacement, typically from the same party, but in theory it might not. It's also arguable that this is not one-to-one replacement since the result is that Siewert is elected in Ludlam's place and Steele-John is elected in Siewert's.

    A hypothetical that is even murkier than the present case as concerns term lengths would be Ludlam's mistake being discovered in the second half of his term with Siewert having lost her seat at the 2019 election. In that case the special count elects a bunch of Senators whose terms have already expired. So is the argument that Siewert then gets her seat back because she was in fact eligible for a longer term (and Steele-John is eligible only for a seat that has already expired and hence gets nothing) or is it that Siewert does not get her seat back because she was originally elected to a term that has expired?

  7. Re first para: if the Parliament, or a House thereof, clearly has the power to do something, the HCA won't interfere to make a "better" decision. (Relevant to the original decision to use order of election for deciding the short and long terms, when there's an arguably more rational method.) But if it doesn't have the power the HCA, on application of a proper plaintiff, will say so. Reading s 13 literally, the Senate has the power to divide into classes once and not to change its mind. There's an argument of practicality that the section should not be read literally, but the HC's general approach is that if there is one pretty-obvious meaning of the words, they go with that (see all the dreadfully inconvenient s 44 cases - they don't say "Oh this paragraph is archaic and ridiculous, we'll pretend it's not there", and goodbye Heather Hill, goodbye Bob Day). As to who would be the challenger, a senator who has been given 3 years and thinks they should have six. If that involves a fight with another senator of the same party, they may be persuaded not to challenge - or may not. Or the Senate may say "we can't work this out - refer it to the HCA" as they have done with the s 44 cases. In fact I expect they probably will say that.

    2nd para - yes it had occurred to me that perhaps Siewert will be Ludlum's replacement and S-J would be Siewert's. And maybe they could then just be "plugged in" to the existing resolution about classes. Would be practical, but again s 13 doesn't literally authorise it, unless you apply a bit of analogical reasoning from s 15.

    3rd para - far too murky for me even to try! Certainly not late on a Saturday arvo and probably not ever.

  8. I think Antony's detailed comment here places us all closer to being on the same page:

  9. Yes. I'm just a bit more worried than him about the fact that s 13 seems to refer to a once-only process. Sen Siewert has already been assigned to the short-term "class". Pedantry says she can't be reassigned, but common-sense may demand it. The High Court has been known to use both pedantry ("literalism") and common-sense, depending on the context.

    1. So am I, although "worried" isn't really the word in my case. The pedant argument presumably goes something like this: this could have been anticipated (and the Constitution changed to deal with it explicitly) if people cared enough at least since Wood, if not since the advent of PR. So since it hasn't and since S 13 refers to a single process, there isn't any process for revising allocations and all that can be done is to allocate new Senators to the remainder of the terms of disqualified Senators as if they had been picked to fill a casual vacancy. There could be extremely rare cases where the allocation of terms became ambiguous under such a standard but this isn't one of them so that doesn't matter.

      Incidentally if the Senate doesn't upgrade Siewert and both she and the new Senator think she should be upgraded, then in theory they could both resign and be appointed to each other's casual vacancy. That would require agreement of their party and the WA Parliament though (and the latter might well decide it couldn't be bothered.)

  10. Ooooh Kevin, you *are* cunning!

  11. And see my latest couple of posts on BillBowe's blog. Depending on when Ludlum got "neutralised" (as some of my droll mates used to call it) he may have been panicked into "resigning" (actually, announcing that he was ineligible) prematurely.

  12. O. M. G!!! Now Larissa Waters has discovered that because of Canadian citizenship laws she's been a Canadian all her life! When will it end?

  13. I'm not convinced that section 44 is going to be treated as applying to all cases of citizenship by descent.

    I think there are enough hints in Sykes vs Cleary that the High Court is prepared to draw a line in relation to the ability of a foreign law to impose, for the purposes of Australian law, an unsought and unwanted citizenship.

    The open question is exactly where that line might be drawn. I'd be surprised if it didn't clear someone like Nick Casmirri. But there are many shades of entitlement between his scenario and the cases on which the High Court has previously ruled.

    I actually hope the Parliament agrees to refer a citizenship-by-descent candidate to the Court of Disputed Returns as an effective test case so that the High Court has the scope for a comprehensive interpretation.

    1. Post from Jack Aranda (original eaten by Blogger software bugs):

      Well, Alaric, so far the HC has only drawn the line at "taking reasonable steps to renounce" and have made no allowance for those who didn't know they needed to renounce or indeed for those who quite reasonably thought they had! (Like Delecretaz and Kardamitzis in Sykes v Cleary.) There is no hint in Sykes v Cleary that the court of the 90s would have been any more forgiving about nationality by descent than nationality by birth. It is possible that the Court of the 10s might be, but we won't know till someone goes through the agony of a challenge.

      I wonder, f'rexample, how many MPs might have a parent who was an Irish citizen at the time of the kid's birth. My wife was born in Aust but her Da was Irish and when she took the kids to get registered as Irish they told her "You don't need to get registered, you're one of us already". Handy if you want to get an Irish passport and stay visa-free in the Schengen area, a bugger if you want to stand for Parliament. (She does not!)

    2. Not a lawyer, let alone Constitutional one, so I'm outgunned here. But in the interests of debate...

      The issue of acquisition of citizenship rather than disposal of it was really only addressed in Skyes v Cleary by Brennan J and Deane J, and it was in their comments (Brennan J on public policy, although his examples were extreme, Deane J with a much stronger suggestion of a "mental element" requiring at least acquiescence) that I see a glimmer of a path out of this mess.

      That said, Deane J might have given Waters a pass, and I'm doubtful the High Court will do that. (If they did, I assume she would end up getting reappointed to the vacancy created by her unnecessary resignation!)

      I say "this mess" because if the interpretation goes as far as some have suggested (beyond automatic citizenship by descent, to even a right to claim such citizenship), I suspect we might lose a few more MPs yet.

      I'm actually in favour of a continuing requirement to renounce any genuine foreign citizenship. But do we really want to end up with (for example) Jewish MPs with no recent connection to Israel having to expressly renounce their rights under the Law of Return?

    3. You may not be a lawyer Alaric, but if you've read Sykes v Cleary carefully and are good at drawing inferences you really know as much about paras 44(i) and (iv) as anyone. It's a terrible bit of nineteenth-century drafting and the HC is rather caught between the plain meaning of the words and common-sense. As you can see from Sykes v Cleary some judges gave greater weight to common-sense than others. A history-teacher friend of mine read it and commented that it was a great pity that Deane J was the one who had been pulled out of the Court to become G-G.
      As to a continuing requirement to renounce, I have suggested that as we repeal para (i) we should add the words ""and I will always put the interests of Australia and its people before those of any other country" to the oath of allegiance. They could still have _some_ degree of allegiance to another country but they would have to make it clear that it must always come second in case of any conflict.

  14. And now Andrew Bartlett! But he has much less to worry about than Ludlam and Waters. There is not a lot of law on "officer of the Crown" under s 44, but there is a lot of tedious law on whether various agencies are "emanations" of the Crown so they can claim the (now-much-diminished) immunities of the Crown. There's one on Unis from 1998, by a Full Bench of the Aust Indistrial Relations Commission presided over by a Federal Court Judge - re NTEU at The Uni employers had originally argued that Unis had Crown immunity and then realised that was a very embarrassing argument to make, and withdrew it. The Bench held that since it had been raised they'd better decide it. The nub of the finding is:
    The functions and activities of a university are not, and never have been in any real sense, carried out by or on behalf of the State. Having regard to each of the relevant factors outlined at the conclusion of Section 2.3.3 above, a university is not properly to be regarded as an agency of a State for purposes of the implied limitation on Commonwealth's legislative power and the award making power in relation to universities.
    I think it follows from that, that the staff of the Uni would also not be "officers of the Crown". Of course a decision of the FB of the AIRC is not binding on the HCA "except in so far as it is persuasive" but I find it persuasive. I have worked for the Commonwealth and I have worked for Universities. When I worked for the Commonwealth I felt constrained by being an officer of the Crown. When I worked for various Unis I did not. My instinct isn't infallible but it's very often right. Andrew is safe.

  15. So I am now very curious to know why George Brandis seems to think that Senator Canavan's case is markedly different from the previous two. The "I didn't know until now" defence was attacked from every quarter when it was the green guy in the sights - what makes the blue guy different?

    Will all of the fingers pointing at "lax screening processes" point in different directions this time?

    1. Barnaby Joyce showed wisdom when he said words to the effect that you don't gloat over this stuff because you never know who it's going to catch out next. His colleagues should have listened.

      Depending on the facts it may be different in terms of how reasonable it was or wasn't to expect the various Senators to know that they might be dual citizens. But even if it is, there is still the problem of the "entitled to the rights or privileges" clause.


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