MP travel claims and elections: Were the rules broken or stretched?

In a series of Deirdre Chambers-like coincidences, at least three parliamentarians made claims for travel and travel allowances that coincided with election activities in Queensland and NSW towards the end of 2017.

Labor MP (and former Treasurer) Wayne Swan and Pauline Hanson One Nation Senator Brian Burston made claims for tax payer funded travel to or around Queensland on the weekend of that state’s election in November 2017.

The following week, Nationals Senator for NSW, John Williams, claimed travelling allowance for an overnight stay in Tamworth on the evening of the by-election in New England that saw Barnaby Joyce returned to Parliament after his disqualification in the High Court.

Choosing an Ombudsman: Revelations from the 1987 NSW Cabinet Papers

The choice for New South Wales’ Ombudsman in 1987 came down to a senior Departmental head and a solicitor with a familiar name in Labor circles; the latter promising a less contested relationship between the government and the Ombudsman’s Office after years of strife between the two.

Cabinet papers for the NSW Government, recently released under the “30 year rule” still applicable in NSW, offer an insight into the appointment of David Landa as NSW’s third Ombudsman.

While the selection panel narrowed the eventual choice to Landa, a prominent solicitor with strong Labor connections, and Trevor Haines, the then Secretary of the Attorney-General’s Department, an impressive shortlist was interviewed, with gender and (relative) youth no bar to inclusion.

However, reducing the eventual choice to Landa and Haines seemingly reflected a desire to create a more harmonious relationship between government and watchdog than existed during the term of George Masterman, QC, who held the post between 1981 and 1987.

Section 44: Is elected local government office an “office of profit under the Crown”?

The section 44 juggernaut just keeps rolling. The next substantive question likely to come before the court, as a consequence of Jacqui Lambie’s disqualification on dual citizenship grounds, is whether her likely replacement, Devonport mayor, Steve Martin, is himself disqualified, for holding an “office of profit under the Crown”, with respect to his office in local government. Martin maintains that he is on solid ground, citing advice given by the then Clerk of the Senate ahead of the 2016 election.

Indeed, history suggests he has a strong case.

How the WA Greens conducted a pre-selection for the wrong Senator

A question barely considered in the ongoing section 44 crisis is what would be the outcome of the filling of places for which Senators were disqualified where they held a six year term, rather than a three year term, following last year’s Double Dissolution election. Would any of the new Senators, elected after a special recount, be entitled to a seat that would not see them go to re-election until 2021-22?

It seems this question has not even considered by the WA Greens, who put their newest Senator, Jordon Steele-John, through a fresh pre-selection at the weekend, even though the highly likely outcome of the High Court’s ruling on him replacing Scott Ludlam is that he now doesn’t have to face voters for up to five years.

Section 44: Would a student loan from the Commonwealth prove grounds for disqualification?

Could the Commonwealth HELP loan scheme, that assists the vast majority of students to undertake tertiary or further education, give rise to yet another ground for disqualification under section 44 of the Constitution, which has seen 10 MPs and Senators depart the Parliament since the 2016 election, another candidate miss out on taking up a Senate seat, and a growing cloud over many more?

If it does, this might adversely affect the position of the newly elected Greens Senator for Western Australia, Jordon Steele-John, who, before taking up his seat this week, was undertaking a degree in politics by distance education at Macquarie University?

If this were found to be an issue, it would also affect the future nomination and election of students and recent graduates with student loans owing to the Commonwealth. While few students are in the box seat for winning an election, some run as minor party candidates, for the experience or to “fly” a party’s “banner” in seats where their prospects are slim.

Can Hollie Hughes Get Past the High Court’s “Brutal Literalism”?

“[the vacancy caused by Robert Wood’s disqualification] can be filled by completing the election after a recount of the ballot papers” (Re Wood, 1988)

“… s 44(i) applies until the completion of the electoral process” (Re Canavan & Ors, 2017)

With those words delivered separately across nearly thirty years, the High Court has possibly put paid to Hollie Hughes’ hopes of becoming a Senator for NSW.

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.

Are They On? Has the AEC got it wrong on 16 and 17 year olds being entitled to a say in marriage equality survey?

Update: 17 August 2017  – Without conceding the argument, yesterday the Minister for Finance issued a statement and amended direction. For abundance of clarity and avoidance of doubt, the amended direction limits the postal survey to those 18 years and over at the end of 24 August.

The statement and direction followed the validation of the arguments put forward in this piece by a range of respected constitutional and electoral law academics.

 

The question of whether 16 and 17 year olds were entitled to be included in the ABS marriage equality postal survey was raised in this blog, and on Twitter, most significantly by Chris Gentle

I honestly think that in their haste the govt have allowed 16 & 17 year olds to participate in the SSM postal vote #auspol pic.twitter.com/BIvrQvEO1k

— Chris Gentle (@crgentle) August 9, 2017

On Friday afternoon, the Australian Electoral Commission (AEC) issued a statement to dismiss this possibility.

Just in Time? Malcolm Roberts’ 1974 Application for Citizenship by Notification

The documents behind the Buzzfeed story on how Senator Malcolm Roberts, indicating he was a British subject in his 1974 application for Australian citizenship, suggests a “just in time” application regarding his citizenship status. Roberts, and his father, were among the last to be recognised by a streamlined process intended to provide long standing British subjects with fast, simple recognition of citizenship.

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.