OPINION: Last Wednesday the High Court delivered its reasons on why Devonport mayor Steven Martin can replace Jacqui Lambie in the Senate. His eligibility was under threat because his job in local government meant he may have held an “office of profit under the crown”. Like dual citizenship, this is a ground for disqualification under section 44 of the Constitution.
The High Court’s decision must have produced a sigh of relief not just from Martin, but from other parliamentarians. In contrast to the strict approach to dual citizenship, this judgment is more favourable to MPs. In particular, a cloud has been lifted from senator Andrew Bartlett, who held a university position when he nominated at the last election. There is no reasonable basis now to refer his eligibility to the High Court.
This latest High Court decision comes at the end of a convoluted chain of events. Lambie was disqualified after discovering she was a British citizen, and so not “as bloody Australian as they come”. This triggered a special recount of Senate ballot papers for Tasmania, which led to the election of Martin as the No 2 candidate on the Jacqui Lambie Network ticket. However, as with other replacement senators, Martin himself may have been ineligible.
The High Court faced two questions. The first was whether Martin held an “office of profit” as a councillor and mayor of Devonport City Council. This produced a quick answer in the affirmative because his roles entitled him to a substantial annual allowance. The more difficult issue was whether Martin held his local government offices “under the crown”. Martin won his case because the court rejected this, and so did not apply section 44.
The court examined the words of the section, and the history of like provisions extending back to 1701. It found that the “office of profit” disqualification is “narrowly tailored to eliminate a particular form of conflict of duty and interest”. This is the intolerable conflict that arises when a senator or member holds a paid job “at the will of an executive government”. A person in this position may safeguard their financial affairs rather than holding the government to account.
The most obvious conflict to which section 44 extends is when a parliamentarian is employed by a government department. A public servant answerable to a minister is in no position to act as a check on that same minister in parliament. Disqualification also extends beyond this to many other positions on the public payroll where the person holds office at the will of a federal or state government. For example, the High Court struck Phil Cleary from parliament in 1992 as a schoolteacher employed by the Victorian government.
In Martin’s case, the court emphasised that he had not been appointed to Devonport City Council by a minister. Instead, he had been elected by the local community, and he lay beyond the effective control of the Tasmanian government. At best, it had limited powers of removal or suspension. As a result, Martin enjoyed a degree of independence and separation from government that ensured his position was not “under the crown”.
The High Court has delivered a decision on Martin that provides the clearest guidance since Federation on what occupations are barred from the federal parliament. However, significant problems remain.
The court’s reasoning means that members of local government in Tasmania can nominate for and sit in the federal parliament. The status of other councillors depends on the level of control their state government exercises over their office. The most likely answer is that they will also be free of disqualification.
The court’s reasoning further suggests that people employed by taxpayer-funded bodies operating at arm’s length from government, such as universities or the ABC, fall outside the reach of section 44.
The High Court has delivered a decision on Martin that provides the clearest guidance since Federation on what occupations are barred from the federal parliament. However, significant problems remain. These arise because the court has held that disqualification arises from when a person nominates for office, rather than once they have been elected. As a result, those people who are disqualified, such as public school teachers, public servants, nurses in public hospitals and firefighters, must give up their job before knowing whether they will be elected.
This is a major disincentive to people from these occupations running for federal office. It is made worse by the High Court’s recent decision that Hollie Hughes cannot fill the Senate position vacated by dual citizen Fiona Nash. The court held that a replacement senator must remain free of any ground of disqualification from the time of nomination until they are selected by a recount. An unelected Senate candidate must therefore avoid any disqualifying occupation over the following years if they wish to remain eligible to fill a vacancy produced by a senator being struck out due to section 44.
This is an unfair and inappropriate rule that bars apparently unsuccessful Senate candidates from undertaking important public service roles and is yet another example of why section 44 needs to be reformed.
George Williams is Dean of Law at UNSW Sydney.
This article was originally published by The Australian.