TWENTY years ago the House of Representatives Standing Committee on Legal and Constitutional Affairs began inquiring into the section of the Constitution under which two senators are now facing disqualification.
 
Some months later it delivered its unanimous findings. It said Section 44 needed fixing up and that the only way to do that would be through a referendum.
 
The committee acknowledged that a costly separate referendum would be unreasonable. But in the ensuing 20 years we have had six elections at which a concurrent referendum could have been held.
 
This is what happens when you do not do routine maintenance on the machinery of government: it breaks down, causing massive disruption, inconvenience and cost.

It will likely put an end to the Government’s hopes of getting its building and construction watchdog legislation through the Senate. This was the legislation that triggered the double dissolution in the first place.
 
Given the Government’s narrow majority in the House, it is unlikely that the deadlock could be overcome with a joint sitting.
 
In any event, a joint sitting poses a further difficulty because, at a joint sitting, legislation cannot be amended, so there would be no room for the typical horse-trading and compromise needed to get crossbench support.
 
In a way, the Coalition has only got itself to blame. After all, it held office in the lead up to the first four of the elections at which a referendum could have been held to fix the mess.
 
Also, to the extent that the Government had any hope of getting its marriage-equality plebiscite legislation through the Senate, that, too, is gone.
 
By the by, it shows how silly governments can be. They are perfectly happy to propose an expensive, stand-alone, controversial and unnecessary national vote on marriage equality (which could easily have been achieved by Parliament) but never took to a necessary referendum uncontroversial changes that the Parliament has no power to deal with.
 
Section 44 disqualifies people for: having a conviction or being charged with an offence punishable by more than a year’s jail; having foreign allegiance; bankruptcy or insolvency; holding an office of profit under the Crown; having a direct or indirect pecuniary interest in an agreement with the Commonwealth.
 
The wording is ambiguous and the intention now out of date.
 
So much so that the Australian Electoral Commission told the committee that it should not advise candidates on eligibility. It said eminent constitutional lawyers disagreed over the meaning of Section 44. The committee agreed, and that remains the AEC’s position today.
 
It is a pretty poor state of affairs. The electoral commission cannot advise on whether someone is eligible to stand for Parliament.
 
Worse, the problem has been identified. Both sides of politics for once agreed in detail on how to fix it, but for 20 years nothing has happened – just the usual bouts of Question Time bickering and name-calling.
 
Independent Phil Clearly was disqualified in 1992 and Liberal Jackie Kelly in 1996 for holding an “office of profit under the Crown”. Cleary was a teacher and Kelly in the armed forces.
 
In 2016 One Nation Western Australian Senator Rod Culleton faces disqualification on the conviction ground, and Family First South Australian Senator Bob Day faces disqualification on the pecuniary interest ground. Day has since resigned following the collapse of his building business and what looked like an inevitable bankruptcy.
 
Nonetheless, much turns on whether he was disqualified from standing in the first place. If he was disqualified, his position will be filled by a countback of votes cast at the election. If not, Family First will get to pick his replacement from among its members.
 
Day’s company had a contract with the Commonwealth for the lease of office space which also happened to be his electoral office.
 
Culleton was convicted in 2014 of stealing the keys from a tow-truck. That conviction was annulled but it was extant at the time of the election. That will cause a lot of legal wrangle.
 
In 1988 Robert Wood was disqualified because he was born in Britain and had never taken out Australian citizenship. In 1988 the High Court thought Britain was “foreign”, even though at the time of Federation all, or nearly all, MPs would have considered themselves “British”.
 
An earlier case against him on the bankruptcy ground was unsuccessful, but it at least enabled the court to clear up some of the ambiguity in Section 44’s wording. The court held you have to have action by a court in relation to your financial affairs and not merely be a person who appears to be unable to pay their debts.
 
So we have had litigation over all five legs of Section 44 and all five legs look defective.
 
Government is so much bigger than in 1901. A huge number of people are employed by it or have contracts with it. It is absurd that people have to end those arrangements before standing for Parliament. They should only have to resign upon election and they should only have to declare any contracts they have with the Commonwealth after election, not cancel them.
 
The conviction disqualification is antiquated. Once people have done their time or paid their fine, they should be able to stand for Parliament provided the conviction is disclosed beforehand.
 
The statute books are riddled with crimes punishable by more than a year’s jail. Theft and larceny are classic. They usually attract around a five-year maximum so courts can deal with serious cases like meticulously planned jewel heists in which people could get hurt.
 
The penalty simply does not reflect the triviality of Culleton’s “crime” – just a neighbourhood spat gone wrong which should not disqualify someone from Parliament.
 
Lastly, the parliamentary committee recommended that the “foreign allegiance” leg be replaced with a simple requirement for Australian citizenship. That, however, may have some constitutional difficulty because in recent bouts of security hysteria the Government has argued it has the power to not only confer citizenship but also take it away.
 
If there are countbacks of Day’s and/or Culleton’s position, you would normally expect their No2 candidate to get the seat.
 
But in Day’s case, if he is disqualified, his No2 would be the only South Australian Family First candidate, and so Family First might not be entitled to stand as an above-the-line group and get above-the-line preference.
 
This year’s new Senate voting system makes this uncharted territory. Under the old system the High Court held that a single remaining candidate was entitled to a preference flow from tickets registered by the parties.
 
All round it is a great day for lawyers, courts and political number-crunchers and a poor day for common sense and routine maintenance of the machinery of government.

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