Wednesday, November 22, 2017

The Latest Senate Section 44 Cases

Time for another - and I doubt it will be the final - roundup of the issues created by ineligible Senators (or in one case, a Senator-who-never-was).  I have had many questions about the Lambie situation but today's resignation of Skye Kakoschke-Moore also requires detailed comments.

Hollie Hughes (Candidate, NSW - disallowed)

The High Court's decision that Hollie Hughes should not be seated in place of Fiona Nash (apparently because of her intermediate holding of an office of profit while the original election was still open, though reasons are yet to be released) creates a new issue.  Hughes was eligible at the time of the original election but her subsequent employment renders her ineligible to fill the position vacated by Fiona Nash.  The Commonwealth is waiting to see whether the court rules that Hughes was incapable of being chosen, or capable of chosen but incapable of sitting.  If the former, Hughes will be replaced by a special count (resulting in controversial Abbott backer Jim Molan becoming a Senator) but if the latter there is some thought (I'm not convinced) that it might be a casual vacancy.

Jacqui Lambie (Tas - resigned)

Lambie has resigned her seat and this has been referred to the High Court for hearings starting December 8, together with the case of Stephen Parry.  As noted in the article concerning Stephen Parry, a simulated special count with just Parry removed creates a major problem - originally elected Senator Nick McKim is replaced by One Nation's Kate McCulloch, so what does the court do about that?  However, if a special count is held for both Lambie and Parry together, this issue is apparently removed, as also noted in the article.  That is, assuming no more Tasmanian Senators are ineligible and ... let's not assume that one too confidently, just for now ...

Assuming both Parry and Lambie are indeed found to have been ineligible and replaced by a single special count, that would lead to Richard Colbeck (Liberal #5) and Steve Martin (Jacqui Lambie Network #2) being new Senators.

However Martin is under a Section 44 cloud because he is Mayor of Devonport and was so on election day, and the question of whether local government is always, sometimes or never an "office of profit under the Crown" has never been tested.  Many federal MPs who were also local councillors have gone unchallenged in the past, but Labor requires its federal candidates to resign from local councils prior to nomination.   If Martin is ineligible, the seat cascades down to the #3 JLN candidate, Rob Waterman.  Waterman is not wildly enthused about becoming a Senator, so this has created speculation that Martin might be disqualified, Waterman might be seated and resign, and the Jacqui Lambie Network might be filling a casual vacancy.  The registered officer of the Jacqui Lambie Network is one Jacqueline Lambie and the party's constitution is a PUP-style paper tiger for her (or was when I last read it) so I think we know where this ends up.

Except that Waterman himself has two potential sources of Section 44 ineligibility - firstly a possible office of profit under the crown (Court Mandated Diversion officer at Department of Justice - though it is unknown to me whether there is any profit in this office) and secondly potential indirect interests in arrangements with the Crown (government funding, including federal, to Rural Health Tasmania).  It's not clear either of these is a problem but in any case, to get back in before the next election, Lambie would need someone to resign who was actually eligible.

If the entire Lambie ticket wipes out then a special count would next give their seat to McCulloch, since she came closest to winning the original election and One Nation is the most favoured party on JLN's above-the-line votes.  However, this unlocks the question of whether a special count is still the procedure when a party has run out of candidates, and I discuss this separately below.

Another possible way back into parliament for Lambie (who has ruled out state politics although she'd probably bolt in) is the House of Reps if Justine Keay (Labor MHR for Braddon) is disqualified and has to recontest.  Although Lambie would start well behind the Liberals and Labor in such a by-election in terms of base votes, she might win it, especially if the Liberals decided it would be fun to run dead or not run at all.

What Happens When A Party Runs Out Of Candidates?

The special count provisions for recounts are not mandated in the Electoral Act directly.  Rather the High Court has chosen, by analogy, to treat the matter in the same way as when a candidate dies between the close of nominations and the return of the writ.  In Re Wood, the court rejected three alternative options:

* A by-election for a single seat, firstly because "It is inappropriate because such an election would fill the vacant place by what would be in effect preferential voting for a single member constituency, not by proportional voting for a multiple member constituency." [21]  Secondly, because "there is no blemish affecting the taking of the poll and the ballot papers are available to be recounted if the valid choice of the electors can lawfully be ascertained by recounting."

* A whole state by-election, because there was no reference or basis for disturbing the election of the other Senators for the state.

* A casual vacancy, because the conditions for the casual vacancy provision in Section 15 of the Constitution were not activated.

A party that runs out of candidates to fill vacancies caused by disqualification might try running a line that to allow the seat it won to go to a different party would in effect fill the vacant place by a disproportional process, denying the will of voters that it receive a certain number of seats and instead returning a party that the original voters did not desire to return.  It might try to claim that on this basis it should be entitled to fill the position itself.

I think such an argument would be rejected and the special count process followed anyway.  If a party has only won the vote that gave it a seat using ineligible candidates, then who is to say (and on what evidence) that had it run eligible candidates it would have won the seat at all?  Voters might have responded differently to those candidates, and even an above the line vote for a party cannot be taken to mean that a voter would have approved of any or all hypothetical candidates for the party.  Indeed the original Tasmanian Senate count provides a concrete example of this: the Greens would not have won two seats had either of their leading two candidates been ineligible.

(By the way, Tasmania, which has five-member Hare-Clark seats at state level, actually has a state-level provision for a party running out of candidates for casual vacancy recounts.  The party may elect to either allow a further casual vacancy recount or contest a one-seat by-election.)

Skye Kakoschke-Moore (SA - resigned)

Which brings us to Senator Skye Kakoschke-Moore, who has been brought unstuck because her mother was born in Singapore, at the time a UK colony, later making her mother retrospectively a UK citizen in an inheritable fashion - a matter on which Kakoschke-Moore had apparently received incorrect advice.  She is the third of the four NXT MPs elected at the last election to face Section 44 queries, but the first to be wiped out by them (Nick Xenophon was cleared but resigned anyway, and Rebekha Sharkie hasn't quit and is yet to be referred.)

A special count for Kakoschke-Moore's place will be won by Tim Storer, the only unelected NXT candidate of their original four.  However, since the election, Storer has fallen out with the party, most obviously because they decided to appoint staffer Rex Patrick to Xenophon's casual vacancy rather than him.  Storer sent the SA Parliament a legal letter asserting rights in the matter, which the SA Parliament ignored, presumably because he clearly didn't have any.

However, his hand has just grown a lot stronger.  Nick Xenophon is trying to argue that the Hollie Hughes case creates a precedent because Storer is no longer a party member and hence may be either incapable of being seated or retrospectively incapable of being chosen.  I don't like his chances.

Section 15 of the Constitution requires that when a party member is chosen to fill a casual vacancy, if they cease to be a member of that party before the seat is actually filled, then they are not eligible.  However that Section works like that because of the history (especially the 1975 part of it) of States appointing Senators who were either not members of the vacating party at all or else were members who the vacating party wouldn't accept.  If a State approves a person who is a non-preferred member of the vacating party, then the party can negate the approval by expelling a member.

None of this applies to filling a disqualification vacancy using the results of the original election.  It is not necessary for a person to be a party member to be elected to the Senate at all, and it is not even necessary that an endorsed candidate of a party be a member of that party.  There is also nothing I can see that allows the retrospective withdrawal of endorsement of a candidate without their consent.  Just ceasing to become a party member does not even nullify Storer's entitlement to be on the NXT ticket, and there is no process apparent for a "disendorsement" that would have any effect.

Indeed if there was a way to disendorse candidates between the confirmation of nominations and election day and thereby stop them from taking their seats (on the grounds they had lost eligibility to be nominated), perhaps the Liberal Party would have found it in the case of Pauline Hanson, back in 1996.  The Liberal Party disendorsed Hanson too late to prevent her name being printed on the ballot papers as a Liberal.  She was elected anyway and sat as an independent.

So NXT, or SA Best (Federal) as it will be soon, might have to try arguing something like this: the choice of the voters (in the absence of Kakoschke-Moore) was to elect three NXT members including Tim Storer as a member of the NXT ticket.  However, in the knowledge that Storer is persona non grata, the special count will elect two NXT members and Tim Storer as an independent, but that is not what the voters voted for.  Of course, Senators quit their parties now and then, but should an instant rat be knowingly put in place?

I think this line is also weak.  Mainly there's the same argument as above - we don't know that the NXT voters (even the above-the-line ones) weren't expressing a personal preference at some level for Storer; nothing tells us they would have voted the same way no matter who was on the ballot.  There are also some consequences of retrospective disendorsement - if Storer could be disendorsed then why not Molan? And at what point would retrospective disendorsement have to occur by?

We do have a few previous cases of this sort of thing coming up.  Lucy Gichuhi was elected as a Family First Senator but Family First had merged with Australian Conservatives and thereby ceased to exist.  Irina Dunn was expelled from her party after refusing to make way for Robert Wood, but the party could do nothing to prevent her being elected to replace him.

But supposing NXT did somehow succeed in having Storer's election nixed.  Then was Storer incapable of being chosen or was he only incapable of being seated.  If incapable of being seated, is it a casual vacancy or a special count?  If in either case it is a special count, does Anne McEwen win as found by yet another Grahame Bowland simulation, or is she incapable of winning because that distorts the voters original intention and the proportionality of the count?  If she is incapable of winning does that then give rise to a casual vacancy or some other solution? It all gets even sillier than it already was.

Aside from any vanilla S44 issues that might affect Storer (who knows) there is one other wrinkle in the Kakoschke-Moore situation.  Nick Xenophon will appear on the winners' list for the special count, but he is already an ex-Senator, the first time this has happened.  This will not have any effect.

Andrew Bartlett (Queensland - hypothetical)

Andrew Bartlett has been seated as a Senator, the replacement for Larissa Waters.  The High Court found that although claims were being made about him having university employment at the time of the election (which might be an office of profit under the crown, though again this is unknown), no-one involved in the hearing on his vacancy had put evidence before the Court and hence the matter was hearsay.  However, the Greens are obtaining further advice on the matter.  The case of Bartlett has another interesting dimension - at various points it has been suggested that there might be problems with challenging the eligibility of a candidate who the High Court has declared elected following a special count, although I've also seen an opinion that they can still be referred.  If Bartlett is disqualified, he is replaced by another Green, Ben Pennings.  That assumes Pennings is eligible, of which I have no reason to doubt.

Jordon Steele-John (WA - hypothetical)

And one more for the time being.  Fresh from successfully foreshadowing the demise of Hollie Hughes, Stephen Murray has suggested that Scott Ludlam's replacement Jordon Steele-John might be in trouble if he has a student loan.  All I can say on that one is that as a former student for over a decade, if that's the case that will be me done for life!  (At one stage I even had to take out the $2 for $1 scheme whereby you get twice as much money but as a loan rather than keeping it.)  If I ever run for parliament I will obviously need to write to the government and declare that I renounce all my allegiances to its student loans and hence no longer owe it money.

There may well be more Senate cases over the next few weeks as politicians go through the process required to make declarations by early December.

Note: A small error in the original version of this article was corrected.  The Tasmanian situation would not be the first time a special count has been ordered for two vacancies, as this also happened in Queensland with Waters and Roberts, although Waters' resignation and Roberts' disqualification came some time apart.

Update (8 Dec):

The Lambie, Parry and Kakoschke-Moore matters were heard today.  Mainly with big thanks to Stephen Murray, the following is what I understand to have occurred (I'm awaiting the full transcript):

* A joint special count will be held to replace Parry and Lambie and this will happen on Tuesday.

* Kate McCulloch is being represented in the case and will seek to have Steven Martin disqualified on the grounds of holding an office of profit.  If this succeeds she will then seek to have Rob Waterman disqualified on both grounds of office of profit and pecuniary interest.

* Martin's eligibility will be heard in late January by the full bench.

* Kakoschke-Moore is attempting an argument even more adventurous than those I gave above - she will try to argue that she should be eligible for her own special count in view of Storer not being a party member any more.  This also won't be heard til late January.


  1. If the original senator was entitled to a 6 year term, will this carry over to their replacement? I believe Kakoschke-Moore was on a 6 year term so will Tim Storer now be hanging around for 4 1/2 more years to torment Nick Xenephon or will the terms be shuffled so that the No3 on the NXT ticket now gets the extended term?

    1. So far it appears that the answer is the former. There was a lot of interest in this point when Ludlam resigned but in his case the High Court simply ruled Steele-John elected in Ludlam's place. The Senate might in theory try to rearrange the terms but has thus far shown no interest in doing so, and this could be open to challenge anyway.

      The issue is significant not just in the case of a rogue Storer, but also for Jacqui Lambie Network in Tasmania. Lambie had a massive below the line vote which was extremely leaky and as a result in the special count, her replacement is elected ninth instead of fourth. So the Liberal Party might argue it was entitled to three six-year terms (which would be a bizarre result given that it won only 4 seats while Labor won five.)