On Wednesday the candidate that was to go into the Senate in Fiona Nash’s spot was found to be incapable of being chosen. Hollie Hughes was the sixth person on the NSW Liberal National ticket at that election for the Senate. A spot that was almost impossible to win at the election. After the election, having not gained a seat in the Senate, she took up a position with the Federal Government on the Administrative Appeals Tribunal. This government job is an office for profit under the Crown, which is a disqualifying factor in section 44iv of the Constitution.

Section 44 Disqualification
Any person who:
(iv) holds any office of profit under the Crown, or any pension payable during the pleasure of the Crown out of any of the revenues of the Commonwealth
shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.

What was surprising was that taking up this part-time position on the AAT after the election means that Hollie Hughes is not capable of being chosen now in a recount. While the Court came to a unanimous view that Hughes is not to be elected in Fiona Nash’s place, the reasons will be published at a later date.

There were three parties to the hearing on Wednesday. The Solicitor-General Stephen Donaghue QC represented the Attorney-General, Arthur Moses SC represented Hollie Hughes and we also had Geoffrey Kennett SC as the amicus curiae. The amicus is a friend of the court who:

applies to the court for leave to be heard during a proceeding. Unlike interveners, an amicus curiae does not become party to the proceedings. Rather, the role is to offer a perspective that the court thinks is important for resolving the dispute that are unlikely to be fully or adequately raised by the immediate parties to the dispute.

Many are saying that this decision is pretty harsh and the amicus curiae in his submission to the High Court did state that finding Hughes to be incapable of being chosen might be viewed this way. But as Constitutional expert Dan Meagher states, the High Court has to interpret the Constitution without fear or favour:

the constitutional role of the Court is clear enough. It stems from covering clause 5 of the Constitution and the judicial oath sworn by each judge upon their appointment. It involves the resolution of cases that raise issues regarding the meaning and operation of the Constitution ‘according to law without fear or favour, affection or ill-will’.

The amicus also said that there is no injustice in closing any revolving door sought to be opened between the Executive and the Parliament. This is exactly why we have section 44iv in the Constitution.

The principle of the Separation of Powers means that while our three branches of Government work together they also provide checks and balances on each other and there are some underlying factors that keep them separate.

If you have an office of profit under the Crown, it means you are employed by the Executive branch of Government. Ultimately a Government Minister is your boss. If you hold an office of profit under the Crown and then quickly switch to being in the Parliament, you can make decisions about this Ministry, including all of the people you previously worked with or for, by voting in Parliament.

The amicus curiae made a couple of good points about this. The first one was that if a person does hold an office of profit under the Crown they can shed that job and then go to the people and ask to be elected. It is then up to the people to decide whether having previously had that job they should not go into Parliament. He went on to say that the process is compromised if the person presented at the election then took up an office of profit under the Crown (or later had any other disqualifying factors in section 44) was later found to be elected through a recount. He stated:

The person who submits him or herself for election needs to be, so far as the paragraphs of section 44 are concerned, the same person that takes up the seat.

Holly Hughes took on an office of profit under the Crown after the election and as such was not the same person who submitted herself to the people for election in 2016.

There are a couple of other points we want to make about this hearing. The Solicitor-General spent much of his time arguing technicalities on what it means to be chosen and also focused on an argument that the High Court did not have the jurisdiction to hear this matter. He did concede that the Electoral Act does give the Court discretion and obviously, the Court used that discretion. This might cause some concern for Assistant Health Minister David Gillespie, who currently has a matter before the Court about his eligibility due to section 44v (pecuniary interest). Much of Gillespie’s argument is focused on whether the High Court can hear the matter.

The amicus on the other hand, very quickly got down to the principles of the matter. He only had to provide some good reasoning as to why Hollie Hughes should not take the seat. After the Solicitor-General heard the amicus’ arguments he had another opportunity to speak. The argument put forward this time seemed to be going along the lines that a section 15 Senate vacancy should occur, rather than another recount. We will have to wait and see what the High Court says on this. They have not yet determined how the Senate seat will now be filled.

The ongoing effects of this decision

Several of the slated replacements for Senators that have been removed due to dual citizenship could have office for profit problems. In Sykes v Cleary in 1992 Phil Cleary was found ineligible of being chosen at an election because his job (which he had taken leave of, but was still officially employed) as a school teacher meant he was employed by a State Government and this was an office of profit under the Crown. It does not matter whether the office of profit is with a State Government or the Federal Government.

Richard Colbeck is expected to be next up for the seat that Stephen Parry had in the Senate for Tasmania. However, during the period since the election in July 2016, Colbeck has had a position in the Tasmanian Government Working Group. This might be considered an office of profit under the Crown.

And Jacqui Lambie’s expected replacement is a Mayor in Tasmania. Local Government are formed through State legislation and the position of Mayor might be considered an office of profit under the Crown.

Andrew Bartlett recently replaced Larissa Waters for a Queensland Senate seat. It is reported that at the time of the last election he had a contract with the Australian National University for a research position. Depending on what the contract position was and how far removed the University arrangement are from the Commonwealth Government, it may or may not be an office of profit under the Crown. However, on the other hand depending on the contract is structured, it could be a pecuniary interest under section 44v. The Greens are seeking legal advice on whether they should ask the High Court to decide the matter.

Should we just get rid of section 44?

In the last few months it has been argued by some that we should just get rid of section 44 of the Constitution. However, this section of the Constitution is there to protect the Australian people from members of parliament that might have divided loyalties. This could particularly be a problem with the Executive. All of our Ministers are either a Senator or a Member of the House of Representatives.

To use a few extreme examples. If Members of Parliament could have dual citizenships, how would we then feel about a Defence Minister of Australia being a dual South Korean and Australian citizen? Where would that persons loyalties lie if a war broke out on the Korean peninsula. If we allowed Members of the Parliament to hold an office of profit under the Crown how would we feel about a Minister being able to also hold the lucrative position as the head of their own department? And if pecuniary interests were allowed, how would we feel about Ministers being able to appoint government contracts to their own private companies. Undischarged bankrupts are not allowed to travel overseas without permission, so if we remove 44iii from the Constitution a bankrupt Foreign Minister would have to go to their trustee to ask if they can travel overseas for Government Business. And finally, let’s think about having a Prime Minster who had previously been attainted of treason or is in jail (although being in jail would likely disqualify you on section 38 anyway).

Yes, some of what has happened lately might seem harsh and unfair. But section 44 of the Constitution is there to protect us. In regards to section 44, all anyone has to do is ensure that they are not disqualified by any of the five subsections. Renounce your foreign citizenship, give up your government job, remove yourself from a business that has government contracts, or wait the three years until your bankruptcy is over or you get out of jail. Once you’ve done all of this, you can put yourself forward to the people and ask them to elect you. Only one of the factors in section 44 might be irremediable (something you can’t fix), and that is being ‘attainted of treason’. But surely no one wants treasonous Members of Parliament.

Parliamentarians are elected to represent the Australian people. For the good of our democracy they need to be held to a high standard and we need to ensure they are acting in the interests of us the people. While recently there have been some parliamentarians tripped up by section 44, this section of the Constitution provides us with some safeguards. Ultimately it would be up to us, the Australian people to remove section 44 of the Constitution. To alter the Constitution a majority of the people in a majority of the States would have to agree to the change at a referendum as outlined in section 128 of the Constitution.