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

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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. Continue reading “Section 44: Questions about the timing of a disqualification.”

Consequences of Disqualification as a Senator on Votes and Payments

[Updated on 6 April 2017, to address the High Court findings in Re Day [No. 2] (2017) as well as other changes in circumstances since the original post].

With the High Court finding that Rod Culleton and Bob Day were each ineligible to contest the 2016 Senate Election, and thus ineligible to be elected and sit in the Senate during the 45th Parliament, and with Day disqualified from sitting as a Senator for several months in the previous Parliament, a number of questions arise as to the consequences of this decisions for their votes while sitting in the Senate, and the recovery of any payments made to them. Continue reading “Consequences of Disqualification as a Senator on Votes and Payments”

Re Webster: Members of Parliament, Pecuniary Interests and Disqualification – A Background

At the heart of the High Court challenge to Bob Day’s qualification to contest the Double Dissolution election of 2016 lies the case of Senator James Webster in 1975. Contentious at the time in the midst of wider political controversy, and thought potentially capable of opening up to scrutiny all manner of contractual arrangements, including residential leases, held between MPs and the Commonwealth, the relevant clause was narrowly interpreted by a single judge of the High Court and benefit of the legal doubt given to the Senator.

Since then, it has been the subject of criticism, and may well be overturned in the course of current proceedings. In its submissions in the current case, the Commonwealth has argued that, while Bob Day would fall foul even if the case were applied, Re Webster was too narrowly decided. Herewith the background to the original case, and its aftermath. Continue reading “Re Webster: Members of Parliament, Pecuniary Interests and Disqualification – A Background”