On 5 April 2017 the High Court, sitting as the Court of Disputed Returns, handed down its decision in Re Day [No 2] , HCA 14 regarding former South Australian Family First Senator Bob Day (Mr Day resigned from the Senate on 1 November 2016). The Court found that Mr Day was incapable of being chosen or sitting as a senator by reason of section 44(v) of the Australian Constitution, and ordered that the vacancy be filled by a recount.
Why was Bob Day found to be ineligible?
Section 44 of the Constitution lists the reasons that render an individual incapable of being chosen or of sitting as a senator or member of the House of Representatives. The High Court found that Mr Day was ineligible of having been chosen due to section 44(v), which provides that any person who:
has any direct or indirect pecuniary interest in any agreement with the Public Service of the Commonwealth otherwise than as a member and in common with the other members of an incorporated company consisting of more than twenty-five persons
shall be incapable of being chosen or of sitting as a senator or member of the House of Representatives. The majority of the Court found that Mr Day had such an indirect pecuniary interest from at least 26 February 2016 and was incapable of being elected at the time of the election.
According to the Court, the Commonwealth entered into a rental agreement for a property for Mr Day’s use as his electoral office. The entity that owned the property directed the Commonwealth to make rental payments to a bank account owned by Mr Day. The summary of the Court’s judgement states that:
The Court held by majority that there was no requirement that a "pecuniary interest" be a legally enforceable interest, and it was unanimously held that the financial benefit which Mr Day stood to obtain from the Commonwealth performing its obligations to pay rent pursuant to the lease constituted an "indirect pecuniary interest" within the meaning of s 44(v) of the Constitution. By virtue of the direction that the rent be paid into a bank account owned by him, Mr Day was to receive rent directly from the Commonwealth. Therefore he had an expectation of a pecuniary benefit from the lease.
The case is particularly notable as it helps clarify the operation of section 44(v). The only previous High Court decision on section 44(v) was In re Webster (1975) 132 CLR 270, which was decided by a single judge and interpreted section 44(v) narrowly. In Day’s case the court unanimously held that Webster should not be followed. Kiefel CJ, Bell and Edelman JJ stated:
In our view, Webster proceeded upon a wrong view of the place of s 44(v) in the Constitution and of the purpose of that provision, and did not give effect to its terms. It should not be followed.
Who will fill the position?
One commentator has suggested that the most likely outcome of a recount will be that the second South Australian Family First candidate, Ms Lucy Gichuhi, will be elected.
Ms Gichuhi is a Kenyan-born lawyer who arrived in Australia in 1999 and obtained Australian citizenship by naturalisation. Importantly, Ms Gichuhi needed to no longer hold Kenyan citizenship prior to nominating for the Senate in order to be eligible (section 44(i) provides that citizenship of a foreign power renders a person incapable of being chosen or of sitting as a senator or member of the House of Representatives).
The High Court also considered, but did not accept, submissions that the above the line votes for Family First could not be counted in the recount. Section 168(1) of the Commonwealth Electoral Act 1918 requires that, in order to have a square above the line on the Senate ballot paper, groups must have at least two members. By ruling Mr Day as ineligible, the decision means that there was only one valid candidate in Family First’s group on the South Australian Senate ballot paper—Ms Gichuhi.
In In Re Wood (1988) 167 CLR 145, a similar case where a senator was ruled to be incapable of being chosen due to having British citizenship, the recount used the above the line votes as it was the best way to ascertain ‘the true legal intent of the voters’. In Day’s case the Court noted the judgment in Wood, stating that ‘here there is no impediment to giving effect to those intentions’. The Court ordered that a single Justice should make any further directions and orders necessary to finally dispose of the case, which might include directions in relation to the conduct and method of the special count.
If Ms Gichuhi is elected but no longer wishes to serve in the Senate, she may resign; the vacancy would then be filled as a casual vacancy under section 15 of the Constitution, with a candidate nominated by Family First.
How long will the recount take?
The recount itself is entirely electronic and should only take a few minutes. However, when the High Court ordered a recount after finding that Rodney Culleton was incapable of being chosen as a senator, the time between the Court’s finding and the declaration of the new senator was about a month (3 February 2017 to 10 March 2017).
A media release from the Attorney-General and the Special Minister of State indicates that Mr Day’s replacement will be sworn in when the Senate next meets on 9 May 2017.
What does this mean for Bob Day’s votes in the Senate?
Odgers’ Senate Practice states:
The presence in the Senate of a senator found not to have been validly elected or to be disqualified does not invalidate the proceedings of the Senate in which the senator participated.
Therefore the disqualification will have no effect on the votes in which Mr Day participated while he was in the Senate.