Section 44: The Cloud Gets Thicker, With An “Office of Profit” Now In The Mix

The cloud hanging over Parliament from the spate of section 44 cases is further complicated by a scenario thrown up by the likely referral of NSW Senator Fiona Nash to the Court of Disputed Return over her possible status as a dual citizen.

Furthermore, at the directions hearing today for the first citizenship five matters referred to the High Court, Chief Justice Susan Kiefel asked the parties to consider what remedies might be appropriate with the passage of time since the last election, given that “we are not in a circumstance where we are close to an election having been held.”

This suggests argument over whether the effluxion of time might require a different solution (such as a re-run of the entire Senate election for an affected State) to the previously used method of recounting the Senate ballots as if the disqualified candidate were not present.

If Nash is held to be disqualified and the usual method of determining the filling of the seat were to be used, then the likely result is a candidate with a new qualification question hanging over her head. The next member on the Liberal/National ticket in NSW after those successfully elected was Hollie Hughes, who was appointed to the Administrative Appeals Tribunal by Attorney-General George Brandis in June this year. Such a position would be undoubtedly held to be an “office of profit under the Crown”, which is another disqualification under section 44 of the Constitution.

If Hughes were in turn disqualified as incapable of being chosen, the place would likely fall to the next placed member of Liberal/National Party ticket, retired Major-General, Jim Molan, who only weeks ago challenged the Liberal Party to expel him for speaking out on internal party matters.

The question then, which has not been taken to the High Court before and thus has not been resolved, is whether the declaration of election by the High Court in disputed returns cases is the new end point of the process of “choosing” in section 44, and does a candidate need to be free of any grounds for disqualification from the time of their original nomination to their “election”, even if that interval occurs over a number of years?

The following refines the argument I set out for the case of the Pauline Hanson One Nation ticket in Queensland, with the hypothetical position of a candidate facing bankruptcy proceeding. The Nash/Hughes/Molan question, on the other hand, is now in play.

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. This method has been used in all the cases since then.

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 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).

Following the October 1980 elections, Labor’s Gareth Evans sought advice from the Liberal Attorney-General Peter Durack as to whether a Senator-elect could take up a paid position as a legislative assistant to a Member of Parliament until the commencement of the new Senate term in 1981.* In helpful and obliging tones, Durack noted that it wasn’t normally the province of the Attorney-General to provide legal advice, but he did set out his own views on the matter at length, including his view that:

I think that the reference to “sitting” in section 44 covers the case of a person who, although not disqualified at the time of his election, comes subsequently under one or other of the disqualifications.

A similar position occurred with respect to NSW Liberal Michael Baume who won a Senate seat in December 1984, and sought advice as to whether he could take a staffer position until he commenced his term in July 1985. On advice, Baume chose not to take the position.

Odgers Senate Practice considers at length 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.

  • Clarification: An earlier version stated that Gareth Evans had sought the advice in regards to his own position. However, Evans himself had been elected at the 1977 election, and had taken his place in 1978, so the advice sought presumably related to a new Senator elected at the 1980 election. While Durack’s advice is couched in general terms (and Evans’ original request is not on the public record), Department of Administrative Services’ advice tabled in 1996 in respect of the Ferris matter indicated that Evans proposed to make the appointment to his own staff. Given the circumstances, it is likely that the unnamed Senator-elect was Robert Ray, who was elected at the 1980 election for the first time.


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