Western Australian Green Scott Ludlam and Queensland Green Larissa Waters are now the third and fourth senators to have left the Senate since the last election due to ineligibility. Prior to the current term of Parliament, only five parliamentarians had ever lost their seats due to Constitutional eligibility reasons.
The four senators—Rodney Culleton, Bob Day, Scott Ludlam and Larissa Waters—all left Parliament due to different aspects of section 44 of the Australian Constitution. Section 44 lists several separate conditions of disqualification that apply to members of both Houses of Parliament.
Subsection (i) states that Members of Parliament must not owe allegiance to any foreign power, which the High Court has interpreted to mean holding citizenship of any country other than Australia, including in conjunction with Australian citizenship. This is the provision under which Scott Ludlam and Larissa Waters are ineligible to sit in the Senate, as they had retained citizenship with New Zealand and Canada respectively. Previously this same provision led to the invalidation of Heather Hill's election to the Senate in 1999, due to her joint British citizenship, and Robert Wood in 1988 due to not being an Australian citizen. Of the various parts of section 44, the citizenship provisions are the most straightforward and well-trod, with the High Court having ruled that candidates must take ‘all reasonable steps’ to renounce their citizenship before nominating.
Subsection (ii) disqualifies those ‘attainted of treason’, or under sentence or subject to be sentenced for a crime carrying a penalty of one year imprisonment or more. Rodney Culleton’s election was found to be invalid on the latter of these grounds as he was subject to being sentenced at the date of the election (although he later had his conviction for larceny annulled). This provision also loomed in relation to the three Turnbull Government ministers who recently avoided contempt of court convictions.
Subsection (iii) disqualifies those who are undischarged bankrupts or insolvents. Both Rodney Culleton and Bob Day were suggested at various times to be at risk of disqualification due to this provision, and, while Rodney Culleton was declared bankrupt, in neither case was this the actual reason for their disqualification. This provision, while much discussed, has never actually been used to remove a sitting member of Parliament.
Subsection (iv) disqualifies those who hold an office of profit under the Crown or receive a Commonwealth pension ‘payable during the pleasure of the Crown’. Phil Cleary was disqualified from his election to the seat of Wills in a 1992 by-election for not having resigned his job as a Victorian school teacher prior to standing for election, although he was on leave without pay and had then resigned between the date of the election and the declaration of the poll. Jackie Kelly was disqualified under this provision from her election in the division of Lindsay in 1996 as she was a serving member of the RAAF at the time of her nomination. Jeannie Ferris resigned her Senate seat due to having worked for a federal senator, as this may have constituted an office of profit under the crown, and was re-appointed into her own vacancy. The Commonwealth pension test has not been judicially considered, however many authorities have argued that that the scope of the disqualification relates only to discretionary pension payments and not to those granted under legislation, such as social security payments.
Subsection (v) deals with direct and indirect pecuniary interest in an agreement with the public service of the Commonwealth. Bob Day was found to be ineligible to be elected due to his ‘indirect pecuniary interest’ in the building in which his electorate office was being rented. The possibility of another potential breach involving Turnbull minister David Gillespie is apparently being considered for court action by the Labor party under this section.
These disqualification provisions can occur when a member is sitting as a Member of Parliament, in which case section 45 of the Constitution is invoked and the seat becomes vacant. However section 44 also states that while disqualified, individuals are ‘incapable of being chosen’. That is, if the disqualification conditions existed at the time of nomination or election, then the election was invalid. This may be resolved through a by-election in a House of Representatives seat or a recount in the case of a Senate election.
One of the consequences of being ‘incapable of being chosen’ is that it cannot be remedied after the election, such as by selling assets, renouncing citizenship, or quitting a job (there is no equivalent to the Minchin Protocol, by which alleged misused entitlements can be repaid by a parliamentarian to avoid prosecution). It is retrospective to the situation at the time of the election process, and means technically the senator or member was never elected. However, Senate proceedings in which a disqualified or invalidly elected senator participated are not invalidated.
In addition to Constitutional requirements, the Commonwealth Electoral Act 1918 requires a candidate be at least 18 years old, an Australian citizen, and either enrolled or eligible to be enrolled on the Commonwealth electoral roll. In addition, current members of federal Parliament cannot nominate for the other House of Parliament, and current members of a state or territory parliament must resign those positions before nomination. The AEC outlines these requirements in its Candidates Handbook, and as part of the nomination process candidates are required to sign a declaration that they are eligible.
While recent disqualifications have led to calls to review the provisions of section 44, a change seems unlikely. Australian voters are notoriously reluctant to agree to changes to the Constitution through constitutional referendums, and it could be particularly difficult to persuade voters to approve the repeal or amendment of provisions inserted to ‘protect the parliamentary system’ against candidates and parliamentarians with potentially conflicted loyalties.