This article is part of my 2025 Tasmanian election coverage. Link to main guide page including links to seat guides and voting advice.
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Something bubbling away in the state election campaign which I have so far avoided writing a full article on is the alleged controversy (and I don't believe the claims really have any merit) about Franklin Labor candidate Jessica Munday's eligibility to be elected. However the appearance in today's Mercury (and also now Pulse) of a claim that the entire election might have to be voided and rerun over this is something that I think I should comment about. Advance summary: no. I also thought this was a good opportunity for a general article about ineligibility in Hare-Clark elections and what can be done about it if it occurs.
The debate concerns Munday's unresigned membership at the time of nomination of the WorkCover Tasmania board. The Liberal Party maintains that Munday is ineligible under Section 32 of the Constitution Act 1934 (effectively the Tasmanian Constitution) which states:
(1) Except as otherwise expressly provided, if any Member of either House shall acceptany pension payable, out of the Public Account, during the pleasure of the Crown or anyoffice of profit or emolument by the appointment of –(a) the Governor or the Governor in Council; or(b) a State instrumentality –his seat shall thereupon become vacant.(2) The provisions of subsection (1) do not apply to a person by reason only that heholds the office of Minister of the Crown or Secretary to Cabinet for this State.(3) No judge of the Supreme Court, and no person holding any office of profit oremolument to which the provisions of subsection (1) apply, shall be capable of beingelected to, or of holding, a seat in either House.
2. Employees in employ of State may be elected to Parliament(1) Nothing contained in subsection (3) of section 32 of the Constitution Act 1934 shall extend to any person otherwise qualified who holds any office of profit or emolument in the public service of the State, or in any business or undertaking carried on by any person, body, or authority on behalf of the State.(2) Any person to whom subsection (1) applies shall –(a) forthwith on being elected to a seat in either House of Parliament cease to hold such office; and(b) be entitled to leave of absence for a period not exceeding two months for the purpose of contesting a Parliamentary election, but shall not be entitled to any salary during his absence from duty for that purpose: Provided that this paragraph shall not affect any right of any such person to leave of absence under any Act or any regulations or by-laws thereunder.
Munday is not a state public servant under the provisions of what is now the State Services Act 2000. She is a "crown servant" appointed by the Governor to serve the State on the advice of the relevant minister. The question is whether her position is an "office of profit or emolument [..] in any business or undertaking carried on by any person, body, or authority on behalf of the State". In the event that it is, as it would seem to very obviously be on a plain English reading of the clause in isolation, there is no problem at all and the entire thing is a massive beatup. However the heading of the section suggests it refers to "employees". The State Services Act 2000 itself has intepretations under which such boards are state authorities, however those interpretations are for the specific purposes of the State Services Act 2000. The correct interpretation of the 1944 Act here is outside my expertise and I'm awaiting any qualified comments on it. My assumption however is that Munday is eligible, pending any clear evidence otherwise.
The legal opinion that the Liberal Party has obtained from barrister Chris Gunson SC explains in detail how Munday meets the definition in Section 32 of the Constitution Act 1934 but unfortunately it does not comment at all about Labor's defence or even display an awareness that Labor has raised it. I would have expected if the Liberals were seriously interested in proving Munday to be ineligible rather than spreading some FUD and getting a few headlines then they would have ensured the defence was addressed in the advice. It would be interesting to see if the Liberal Party has any legal advice about Labor's defence or if for that matter Labor will release advice on the issue. Munday herself has advice from a former Solicitor-General that she is eligible. [Update: this advice is now covered here - the advice is by Michael O'Farrell SC. O'Farrell specifically references the 1944 Act and says that he does not think "there can be any doubt that the WorkCover Board is engaged in an undertaking, and carries that out as a body or authority on behalf of the state".]
The rest of this article isn't written to take seriously the idea that Munday is ineligible. It's written because the general matter of what happens if someone is ineligibly elected in Hare-Clark is a matter that hasn't had much attention, and this is a good example to talk about as it involves a candidate who at this stage might or might not be elected.
Consequences of ineligibility: if candidate won
In federal elections the matter is well settled. If a member of the House of Representatives is ineligibly elected then the solution is a by-election and the ineligible member can recontest if they are now eligible. If a Senator is ineligibly elected then the solution is a special count at which the entire Senate count for the state or territory is redone without the ineligible Senator, typically electing the next candidate down on their party's ticket. This excludes the disqualified Senator until the next election, unless they get appointed on somebody else's casual vacancy.
However for state elections conducted under Hare-Clark the answer is complicated by a lack of precedents and court rulings. This situation last arose in 1979 when various elected MHAs were accused of breaching spending caps that existed at the time, resulting in challenges initially against everyone elected in that election that were later narrowed down to challenges against three Labor MHAs in Denison (now Clark) and four in Bass. Ultimately the three Labor MHAs in Denison (John Devine, John Green and Julian Amos) were found to have breached their spending caps and to have been ineligibly elected.
The result was a by-election for all seven seats in Denison, not because the court had directed such but because the Parliament had passed the Electoral Amendment Act (No 2) of 1979. This Act held that if a single member in a division was ineligible to be elected, their seat would be vacant and a single-member by-election would be held for that seat. But if more than one member of a division was disqualified, the entire division would be voided and a seven seat by-election held. This led to the Denison by-election of 1980, at which Devine and Amos won their seats back but Green lost out to Democrat Norm Sanders. (One of the sitting Liberals also lost their seat to another Liberal).
As Devine, Amos and Green were all seated in parliament while the challenge to their seats was heard, they were in fact able to vote (and did vote) on the legislation that made this solution possible, which the Liberal Opposition opposed. The Government's argument was that for a member who had breached a salary provision to be excluded from parliament for up to four years with no prospect of recovering their seat was an unreasonable penalty. They also argued that recounts of any kind were not a fair solution since in Bass if they lost four MPs they would run out of MPs to contest the recount and lose a seat, and of course a mult-seat by-election for just the voided seats would make it impossible for Labor to recover them all. In the end only the three Denison seats were voided, not the four Bass seats.
The Electoral Amendment Act (No 2) of 1979 expired at the end of 1980 so there is now no enacted rule in place for dealing with a disqualification. This all highlights that if an ineligible candidate ever does win again the Parliament (via legislation passed through both houses) has scope to determine how to fill the vacancy before the court makes a decision; the court is not necessarily going to just declare the whole seven-seat contest for that seat void. Possible solutions would include:
1. a recount of the excluded member's seat as if it were a casual vacancy (but I would argue that this is a bad solution since it rewards the party that ran the ineligible candidate by ensuring they retain the seat)
2. a recount of the whole election with the excluded member removed from the count as if they had died between nomination day and polling day (the risk although small is this might unelect someone who was validly elected at the first election)
3. a single seat by-election, but this would be unfair if the vacating member was from a minor party
4. a whole-of-electorate by-election.
Even if left to its own devices, it is not obvious to me that the court would choose solution 4 as opposed to declaring a different candidate elected following solutions 1 or more likely 2 (the Court has no power to order solution 3 of its own volition, but could declare a vacancy that activated solution 3 if there was legislation allowing it to do so). We already know that the High Court has so far chosen solution 2 over solution 4 when an ineligible Senator is elected, a situation that had not come before the High Court in 1979. The 1979 decision by Parliament does not set any precedent that the Court would be required to follow, least of all because the Parliament specified solution 3 not solution 4 as the remedy for a single member being disqualified.
Consequences of ineligibility: if candidate lost
The opinion the Liberal Party has obtained also suggests that even if Munday is not elected but found to have been ineligible, the Court of Disputed Returns might invalidate the contest for Franklin and send all seven elected Franklin MPs to a by-election. This in my view is very unlikely - but it could in an edge case depend on the mechanics of the count. As I noted in comments re the NT case Hickey v. Tuxworth (1987) 47 NTR 39 there has been an example in Australia of a seat being voided because an ineligible candidate stood and was defeated. However the High Court has since severely criticised the reasoning, especially on the grounds that voiding elections because somebody ineligible ran and lost would "play havoc with the electoral process". Ineligible candidates - dozens of whom run at every federal election as it is - could then run just to try to get a seat voided even if they had no chance of winning. Perhaps a court would do something about an ineligible candidate losing in a case where reallocating their votes as if they had died between nomination and polling day resulted in a different list of winners to the actual election, but otherwise (and even in such a case) I doubt the court would go there.
Voiding of the whole election?
The opinion obtained by the Liberal Party raises the spectre of the entire 2025 election being voided and rerun if a prominent candidate was found to be ineligible, supposedly on the grounds that their presence and activity in the state campaign has somehow contaminated the choice of voters in other divisions regarding their own representatives. The opinion suggests that whether or not this could be a thing would be determined by "necessary facts" as yet unknown - Munday's involvement in the campaign and analysis of the results in the other seats. It is totally unclear to me - and no mechanism is cited - how any level of an ineligible candidate's involvement in the campaign in other seats, or any results in other seats, could result in a different seat being voided. After all people who are not eligible to be, or even attempting to be, elected to any seat will campaign in seats all the time.
I am very confident that if this was even remotely a thing there would have been precedent by now as there have been so many cases involving ineligible MPs and there is not, at least not in Australia. In 2016 the Liberal-National Coalition was narrowly returned with an ineligible Deputy Prime Minister but when his ineligibility was discovered (albeit long after the close of the window for public challenges to the results) there was no suggestion that the Parliament should refer at least all the other National Party members and Senators to the High Court. "Your Honours, the member for Gippsland was never eligibly elected because his win was infected with Barnaby's Kiwi germs!" (The language of the Electoral Act 2004 may give the lay impression that the Court of Disputed Returns would consider voiding an entire state election but in this context an "election" is an election for one of the five divisions.)
The idea that the Court could void an entire state election on the grounds of a single candidate's eligibility is in my view beyond absurd. There are very many cases where voters might vote for a party under impressions about which candidates running in different seats might be a member of that party's government, but those impressions might be wrong for any number of reasons that might or might not be the fault of the party that endorsed the candidates (including simply that the candidates might lose). It's only two elections (which is only just over four years, sigh) ago that Adam Brooks resigned his Braddon seat hours after being (eligibly) elected following multiple scandals. There were claims that the Liberal Party were not running Brooks as a serious candidate and were just running him as a profile-harvester, and never intended that he serve a full term. Voters might vote for parties in a seat based on all kinds of other false pretences created by the party (broken promises for starters!); there is never any end to contentious judicial interference in elections if one thinks that other seat contests should be voided over this stuff.
I may add more comments later.