Senate Section 44: The Term Lengths Issue Is Back

Once upon a time, a young chap in the Senate discovered that he was a dual New Zealand citizen and resigned.  Back in those quaint, far-off days (it was actually July this year), the fact that he was the holder of a six-year term was one of the most intriguing things about the situation.  With Ludlam's resignation merely the start of a citizenship issue that has now claimed eight MPs, with two more currently referred and questions about many others, the term lengths issue has been on the sidelines.  The High Court following Re Canavan simply appointed Jordon Steele-John to Ludlam's vacant place and it was assumed that that was all, perhaps because there wasn't an alternative.  But it turns out that was all because nobody suggested otherwise, and following a mention of the question by amicus curiae ("friend of the court") Geoffrey Kennett in the Fiona Nash case, the issue is back.

Firstly, although Steele-John is listed on Senate documents as having a term expiring in 2022, the WA Greens conducted a preselection (which he won) on the assumption that he would be facing the voters again in 2019.  Secondly, the issue has now been brought to the High Court's attention in cases dealing with the replacement of Senators Nash, Parry and Lambie (who all had six-year terms) and in the Lambie case it impacts on the future party makeup of the Senate.

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: Could Parry Peril Unelect McKim?

Warning:  Section 44 has now reached Wonk Factor 5/5.  

The Section 44 citizenship crisis affecting the Federal Parliament has reached a new level of electoral law murkiness today with the news that a Tasmanian Senator, Senate President Stephen Parry, is investigating whether he may be a UK dual citizen by descent.  Parry's father was born in the UK but moved to Australia as a child.  If it turns out Parry is ineligible, he is expected to resign from the Senate immediately, and following a referral the High Court would presumably follow the precedents set in Re Canavan regarding Barnaby Joyce and Fiona Nash and give him the flick.

That might all be the straightforward end of proceedings.  The possibility of a special count for Parry's seat (a recount of all votes as if the departing Senator had died before the poll) creates new problems in dealing with the replacements for ineligible Senators.   The reasons for this concern two unusual features of the Tasmanian Senate count: the very high rate of below-the-line voting and the extremely close result for the final seat.  Incumbent Nick McKim (Green) held off Kate McCulloch (One Nation) by just 141 votes.  McKim should have been re-elected easily but the Greens vote was damaged by the successful campaign to save Lisa Singh, who had been dumped to a normally unwinnable position by her party.  

More Section 44 Cases In Spotlight

A very long time ago now two Greens Senators resigned after discovering they were dual citizens.  The Senate will refer their cases to the Court of Disputed Returns (typically the High Court) which will determine whether they were eligible to have been elected in the first place and, assuming that they weren't, will initiate a "special count" to fill their places.  In the weeks since then, however, many more MPs have come under the spotlight of the dual citizenship rule in Section 44 of the Constitution, and it's unlikely it has claimed its final victim yet.

The Constitution is very black and white about dual citizenships - section 44 says that if you are a citizen of another country, you are not eligible to be chosen or to sit in Parliament.  It doesn't seem to allow any ifs or buts about all that.  However, the High Court in Sykes v Cleary [1992] found that the Constitution was unrealistic and had to be "read down".  After all, if it were that straightforward then another nation could maliciously impose citizenship on Australian MPs and refuse to withdraw it.  Alternatively, for a given citizen of a given nation, procedures for getting rid of an unwanted citizenship might be unrealistically expensive, time-consuming, slow, dangerous, unreliable or unreasonable.

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.

Bob Day Chaos Thrills The Crowd

It's so crazy it's beyond even poetic.  Firstly now ex-Senator Bob Day takes the government to court using money that may not even exist to argue that the new Senate system has prevented his re-election.  Then he proves his own case multiply wrong by winning.  Then it turns out he might not be eligible to keep his seat and he says he'll resign, then he flags that he'll hang around a bit.  Then he resigns, and then it turns out that he might never have won in the first place - for a different reason to the one he first flagged resigning over.  And it has been cited as a factor in the blowup between George Brandis and the former Solicitor-General, Justin Gleeson (though it's now emerging that that was erroneous and advice involving a different Senator, Rod Culleton, was the issue there.)

What happens now?  Firstly, while Day's seat remains vacant until we find out whether it is a recount or a casual vacancy appointment that will fill it, the Coalition benefits.  The Senate is reduced from 76 seats to 75, meaning that a majority is now 38 not 39, which is effectively the same as having Bob Day automatically voting with them on everything, with the added bonus of him not even being there to do it.  They're probably hoping the court has some really long adjournments.

(Update: The paragraph above was written before Culleton threw a spanner in the works by flagging his intention to abstain on contentious legislation while his own eligibility is sorted.  If Culleton abstains then the combined absence of Day and Culleton is very harmful to the Coalition,  meaning they need 8/9 non-Green crossbench votes instead of 9/11.)