Replacing dual citizens in the Senate

On Wednesday South Australian Senator Skye Kakoschke-Moore addressed the media to let us all know she is a dual British and Australian citizen. She has resigned from the Senate, but will refer herself (as they say) to the High Court sitting as the Court of Disputed Returns to have the Justices determine how she will be replaced.

Three of the dual citizens (Waters, Roberts, Ludlam) that were found by the High Court at the end of last month to be incapable of being chosen at the last election have been replaced by a recount of the 2016 vote. Two others that were earlier found incapable of being chosen (Day Section 44v, and Culleton Section 44ii) were also replaced by a recount. What happens in a recount is that the disqualified Senators are effectively removed from the ballot. The votes for these disqualified Senators then move down further the preferences.

Hollie Hughes was also set to replace Fiona Nash in the recount of the NSW Senate ballots, but the High Court has last week disqualified her due to Section 44iv. It is thought that Hughes was capable of being chosen at the 2016 election, but about 12 months later she took up an office of profit under the Crown that has disqualified her from the Senate. We are yet to know whether she was incapable of being chosen or incapable of sitting and this may affect how she is replaced.

When a Senator is found to be incapable of sitting, a replacement could be made by a Section 15 casual vacancy. This effectively means that the party that the Senator belongs to chooses the replacement, which is then endorsed by the State Parliament that they are from.

If a Section 15 casual vacancy is to occur from the disqualification of Hughes, some are hoping that Fiona Nash might be able to replace Hollie Hughes. If this is the case, this throws another spanner in the works as Nash (a National) and Hughes (a Liberal) do not belong to the same party. Section 15 of the Constitution states that a person filling a casual vacancy must be from the same party of the Senator that is leaving.

Some believe that because the Nationals and Liberals share a ticket on the ballot paper that a member of either party may be selected. But it is more likely than not that choosing a National to replace a Liberal would also end up in the High Court.

If a recount is ordered for Hollie Hughes it is thought that Liberal Jim Molan would be next in line to take the seat.

Directly chosen by the people

Most of us (something like 95%) tend to vote above the line in the Senate and many believe that they are voting for a party. Thus, we might think that the Senate seat should belong to the party.

However, this is not the case. Even if we do vote above the line, we are giving our one vote to an individual person, rather than a party. Our voting system gives us a transferrable vote, what we call ‘preferences’.

If you vote above the line, the candidate you are giving your vote to is the first person listed under the line.  Your second preference is the second person in that list under the line and so on until all of the people in that list have a preference from you. Then we move onto the party you have given your number 2 to above the line, and the first candidates listed below the line in this list receives your next preference and then the candidate under them and so on.

If you vote below the line, it is much clearer who you are actually giving your preferences to. They are in the order that you make them.

Section 7 of the Constitution states that Senators must be directly chosen by the people:

The Senate shall be composed of Senators for each State, directly chosen by the people of the State, voting, until the Parliament otherwise provides, as one electorate.

This means the party doesn’t choose, we the people choose the Senators. But the above the line voting puts them in an order for us.

Earlier this year Lucy Gichuhi gained the South Australian Senate seat that was vacant after Bob Day was declared incapable of being chosen at the 2016 election. A recount occurred. Gichuhi was not elected because the Senate seat belonged to Family First. It just so happened that in a recount of all the ballot papers (with Bob Day removed) she had enough votes to be elected to the Senate. She resigned from the amalgamated Family First/Australian Conservatives party before she was sworn in. There are others that have left their parties after the last election (such as Senator Cory Bernardi who was elected as a Liberal) and they also remain in the Senate. No one has tried to wrestle their seats off them.

NXT or SA Best

In a recount to replace Skye Kakoschke-Moore, it is likely that Tim Storer will be next in line to be elected. However, Storer recently quit the SA Best Party after trying to wrangle the Senate seat available by the Section 15 casual vacancy created when Nick Xenophon quit the Parliament.

If SA Best argue that Storer should not be elected in a recount because he is no longer in the party, it will start to unpick some of the theory behind the words ‘directly chosen by the people’ found in Section 7 of the Constitution.

Others have started to look at other ways to disqualify him. It has been suggested that his job at a university might be an office of profit under the Crown (these jobs are still untested by the Court). A further recount without Kakoschke-Moore and Storer would likely elect Labor’s Anne McEwen.

As you can see, it is very messy. All of the newly appointed Senators are under a microscope at the moment. Larissa Waters replacement, Andrew Bartlett, might have a problem because of his position at a university and it has been floated that Jordan Steele-John might have a problem because of a student loan (theoretical and untested, plus we don’t even know if he took out a HELP loan). Malcolm Roberts’ replacement, Fraser Anning has already quit his party and the possible replacements for Jacqui Lambie and Stephen Parry are also under a cloud due to office of profit problems.

Senators that we have lost since the 2016 election

Resigned and replacement chosen by party under Section 15

  1. Stephen Conroy (ALP)
  2. Nick Xenophon (NXT)
  3. Chris Back (Lib)

Incapable of being chosen due to Section 44i

  1. Scott Ludlam (GRN)
  2. Larissa Waters (GRN)
  3. Malcolm Roberts (ON)
  4. Fiona Nash (Nat)
  5. Stephen Parry (Lib)
  6. Jacqui Lambie (LAM)
  7. Skye Kakoschke-Moore (NXT)

Incapable of being chosen due to Section 44ii

  1. Rod Culleton (ON)

Either incapable of being chosen or sitting due to Section 44iv

  1. Hollie Hughes (Lib)

Incapable of being chosen due to Section 44v

  1. Bob Day (FFP)

Plus we have lost two members of the House of Representatives (Barnaby Joyce and John Alexander) and many people expect that more dual citizens will be found in the House through the disclosure process. Then we have National MP David Gillespie who currently has a case before the Court due to Section 44v and QLD Senator Barry O’Sullivan has some Section 44v questions too.

How can we just get this sorted out? Should the disclosure, which is expected to be finished by 5 December, cover all aspects of Section 44, not just citizenship? And why is there some gentlemen’s agreement that only the party that has a potentially ineligible parliamentarian can refer them to the High Court?

We’ve written extensively about this subject since Scott Ludlam resigned. Initially the feedback we received about the evolving situation was that people felt sorry for the politicians who had been caught up in the dual citizenship scandal. Over the last few months that feeling has perhaps turned to anger. Some feedback we now receive suggests politicians found ineligible should be made to pay back their salaries and barred from rerunning, possibly ever again. Some in the media state that it was the candidate’s responsibility to do the checks required by the Constitution before standing, while others say we should go to a referendum and change Section 44.

The role of the AEC

This week it was suggested by some that the Australian Electoral Commission should audit all candidates before each election. The AEC Commissioner wrote a letter to the editor explaining that the legislation does not currently allow this. The Commissioner also stated that even if the AEC did have this power, it would not be possible for them to audit all candidates in the very short period that they have between the close of nominations and the printing of ballots. At the 2016 election there were 1650 candidates. That’s a lot of checking.

However, once an election occurs the checking process would need to only cover 226 elected parliamentarians. Perhaps an audit could occur after each election (and after a by-election and a casual vacancy), which goes through all five subsections of Section 44 of the Constitution. Then ineligible parliamentarians can be turfed out immediately. It might give political parties more incentive to check their candidates and only put forward those who are qualified. What has happened in the 45th Parliament surely cannot continue.

Last week the OECD released their Government at a Glance report. This report found that only 42% of Australians trust their Government. It is one of the lowest results in the OECD. Potentially ineligible MPs and Senators sitting in the Parliament does not do anything to turn this figure around. 


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