Section 44: Questions about the timing of a disqualification.

The possibility that the election of Queensland Senator Malcolm Roberts might be voided because he was disqualified by standing while still a British citizen, without having taken sufficient steps by nomination day to renounce that citizenship, has given rise to further questions as to what would occur if a likely successor were also disqualified.

This is complicated by the possibility of the disqualifying circumstances occurring after the 2016 election, but before (or while) the High Court considered how a person might fill a Senate seat vacated by any disqualification of Roberts.

The third placed candidate on the Pauline Hanson’s One Nation (PHON) ticket, Fraser Anning, is reportedly facing bankruptcy proceedings. If he were bankrupt or insolvent, the Constitution would seem to indicate he would be incapable of being chosen or sitting as a Senator. If it were ruled that he too was incapable of being chosen by reason of disqualification, then the likely outcome would be that the fourth member of the PHON ticket, Judy Smith (Pauline Hanson’s sister), would be declared the second PHON Senator for Queensland.

However, commentary, most notably that of Antony Green, argues that to disqualify Anning from being chosen (as opposed to being disqualified from sitting as a Senator), the circumstances must have been extant at the time of the 2016 election not at the time a High Court may be faced with the question later this year or beyond.

In this scenario, Anning would be entitled to claim the seat if declared the next elected upon a recount, but if bankrupt at the time he was declared elected he would be disqualified from sitting, meaning that it would be filled as a casual vacancy (effectively with a candidate of PHON’s choosing) rather than by a subsequent recount of the 2016 ballot. This leaves open the possibility of Malcolm Roberts, free of any cloud over his now renounced British citizenship, filling the casual vacancy, caused at two steps removed from his initial disqualification.

This is an arguable proposition, and would depend on how the High Court would view its role in declaring elected a replacement Senator for Roberts; in particular, whether its declaration performed part of the “choosing” for which a candidate must not be incapable, pace s. 44 of the Constitution.

The situation is further complicated by the argument that the High Court cannot consider Anning’s circumstances at first instance, even if he is the likely or duly declared replacement for Roberts, unless the Senate refers his case as part of any referral regarding Roberts.

While the High Court has not explicitly stated that when it declares a candidate elected in place of a disqualified Senator by way of recounting the original ballots (as it has in 1988, 1999 and twice in 2017) that such a declaration is a continuation of the election process affected by s. 44, it is very likely that this is the case.

In Vardon v O’Loghlin (1907), the High Court as the Court of Disputed Returns held that if it voided an election “the case is to be treated for all purposes, so far as regards the mode of filling the vacancy, as if the first election had never been completed”.

Similarly, in the case of Robert Wood in 1988, the High Court said that “A Senate election is not completed when an unqualified candidate is returned as elected. The return does not meet the exigency of the writ …”.

(In both cases, nevertheless, the Court affirmed both the validity of the election of the other Senators, and the legitimacy of any Parliamentary votes and proceedings in which the affected Senator took part.)

That the 1987 Senate election for NSW was still incomplete by virtue of Wood’s disqualification made it necessary for the Court to consider the manner of filling the vacant place, for which it chose to order a recount of the ballot papers to determine who would have been elected if Wood had not been on the ballot paper. With the group votes for the Nuclear Disarmament Party passing on to the second member on the ticket, Irina Dunn, she was declared elected.

It would follow then that if the election is incomplete (by the return of a disqualified candidate), and is being completed by the actions of the Court, for a candidate to be validly elected by way of a Court declaration they would still have to be capable of being chosen; that is, still qualified (as in being a citizen and enrolled to vote) and still without disqualification at the time of filling the place.

A live question on circumstances that might give rise to a section 44 disqualification occurring after nomination but before being declared elected, or even taking up the seat, has yet to be decided.

In Sykes v Cleary, the 1992 case that disqualified Phil Cleary from holding a House of Representatives seat on the grounds that as a government employed teacher he held an “office of profit under the Crown” and found two other candidates were unable to contest the election on grounds of holding dual citizenships, Deane J addressed the issue of what would happen if a there were a change in a candidate’s circumstances between nomination and being “declared duly elected”.

Deane held that:

if a disqualifying event under s. 44 of the Constitution intervenes, the disqualified person cannot be validly declared duly elected at a time when he or she is disqualified.

In doing so, he referred to Quick and Garran’s Annotated Constitution:

If a disqualified person is declared duly elected, he is nevertheless not chosen within the meaning of the Constitution, and accordingly is not a senator or a member. He is forbidden to sit as a senator or a member, and is liable to a penalty if he does so sit. This section does not, like the next section, declare that “his place shall become vacant,” because he is incapable of having a place.

(My emphasis)

Deane’s holding refers to a declaration being made “at a time” when the candidate is disqualified, leaving open an argument over whether a “temporary” disqualification which occurs after nomination but is remedied by the time a person is declared elected or, alternatively, takes their seat, would void the election of a Senator.

So far this question has largely arisen with respect to holding an office of profit at some stage during the “election” process (including the time after the poll declaration but before a Senator takes their seat after the 1 July commencement date for a new term), but it might also apply to the temporary effects of bankruptcy relief during this time.

In this context, Odgers Senate Practice considers the case of South Australian senator-elect Jeannie Ferris in 1996. Ferris was first elected to the Senate for South Australia at the March 1996 election, meaning that her term would commence on 1 July 1996. At a time when it was clear she had won a place, but before even the writs had been returned, she was appointed to a staff position for then Parliamentary Secretary to the Prime Minister, Nick Minchin, in the new Howard Government for such time until she could take her Senate seat.

When this appointment was made known and controversy arose, she resigned her position; meaning that the potential disqualification was not in place on the day the poll was declared elected. But the question still arose as to whether she was still disqualified from taking the Senate seat. The Government tendered advice from Christine Wheeler, QC  arguing that Ferris was not disqualified, largely over questions of whether at the relevant time, as a Parliamentary Secretary, Minchin had the legal authority to engage staff or had sought the necessary approval for Ferris’ appointment, thereby invalidating Ferris “holding” any office.

The then Clerk of the Senate, Harry Evans, separately advised there was an argument that Ferris had been validly appointed, had held an office of profit under the crown, and as she had not even been declared elected when she entered into an employment agreement with Minchin, it was likely she had held an office of profit before she had been chosen.

Interestingly, on the question of timing, Wheeler advised that on her understanding of the explicit holdings of Deane J and the implicit holdings of the majority in Sykes v Cleary if Ferris had validly held an office of profit (even for a short period) in the period before she was declared elected but after polling day, her election “would be” voided. On the question of timing, Evans offered that if the completion of the election was dependent on certification of the writs, then there was an argument that Ferris’ place was voided.

Evans’ alternative position was that if somehow the election had been “completed” before Ferris held the office, then she would arguably be disqualified as if a Senator (rather than as a candidate), meaning her place would be filled as if a casual vacancy, as in the case of a Senator-elect who had died in 1938 before taking his seat. But, as seen from the Vardon and Wood cases, the Court has held that ruling a Senator disqualified renders the election incomplete.

In late May 1996, the Senate resolved to refer the matter to the Court of Disputed Returns, but with a deferral (by way of a Government amendment) to not refer it until 14 July 1996. This allowed the possibility that Ferris would commence her term on July 1, but resign thereafter, and seek to fill it again by being nominated to fill the resulting casual vacancy, without having any cloud of disqualification. And indeed, this is what occurred. The strategy was condemned at the time as a means of circumventing determination of the matter by the High Court.

As the Court of Disputed Returns was not asked to consider the matter by the Senate, there it lies. However, Odgers suggests that while uncontested, the strategy of resigning and then filling the casual vacancy may have relied on a faulty premise:

If she had been disqualified at the time of her election, her resignation and appointment to the consequent vacancy would not seem to cure the defect, because if she were not validly elected there could be no valid resignation and consequent vacancy.

As for when this might be considered in respect of Anning were he to be elected in the place of Roberts, the High Court would be unlikely to go behind his qualification or disqualification where the Senate referral relates only to Roberts.

For instance, when he was asked to do so in the case of Dunn in 1988 while supervising the recount, Mason CJ, in Re Wood No. 3, said:

Mr. O’Sullivan, for Elaine Nile, has submitted that there are two issues that should be resolved in the public interest. These issues relate to the eligibility of Irina Dunn to be nominated as a candidate and whether the Nuclear Disarmament Party is a political party within the meaning of that expression in the Electoral Act. Neither of these matters falls within the terms of reference by the Senate to this Court and accordingly they are not issues which I can pursue.

(My emphasis.)

However, in the recent case involving Bob Day, the Court opened the door to considering the eligibility of Day’s Family First running mate, and eventual successor, Lucy Gichuhi,  regarding questions around her previously being a Kenyan citizen. The door was slammed shut, however, when counsel for ALP candidate, Anne McEwen, failed to put up a sufficient case in time to have the point considered.

If Roberts were to be found disqualified, upon terms of reference relating only to him, and Anning declared elected in his place while bankrupt, it would not be possible to contest that outcome. To provide certainty in the outcomes of the Court of Disputed Returns, Section 368 of the Electoral Act provides that:

All decisions of the Court shall be final and conclusive and without appeal, and shall not be questioned in any way.

While it would be possible for Anning’s qualification to be elected in turn be questioned, it would take a fresh referral by the Senate for it to be considered in a new case before the Court of Disputed Return, which could then find that Anning was incapable of being chosen by reason of the bankruptcy occurring between nomination and election, and move to a further recount to find a new replacement Senator.

 

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