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.

Section 44 Strikes, But The Government Hasn't Lost Its Majority Yet

Many news sites have now claimed that, in light of today's dramatic Section 44 disqualification of Barnaby Joyce from Parliament by the High Court, the beleagured Turnbull government has now lost its majority.

This is an exciting claim, but it isn't actually correct.

Pending the holding of a by-election for the seat of New England, the government will, when the House of Representatives next sits, hold 75/149 seats, with one vacant.  74 seats will be held by other MPs.  75 is larger than 74.  75 is larger than half of 149.  75 divided by 149 is 0.5033557... .  It is more than 0.500000.

The government's new and very temporary position is no different mathematically to that of the Cook Liberal government in 1913, which won 38/75 seats.  The Cook government is widely referred to as having had a one-seat majority.

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.