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So ends this Day – Australian Senator resigns amid eligibility doubts

The election of a Senator for South Australia in July is descending into a legal fiasco.

A few weeks ago Senator Bob Day, the only federal parliamentary representative from the conservative christian-based Family First party, announced that his housing development business was collapsing, and that he would resign from the Senate to attend to his business affairs.

Were Senator Day to have become personally bankrupt, his eligibility to serve in the Senate would have ceased, creating a vacancy even if he had not resigned.

But evidence is emerging, amid a flurry of legal advice, that Day has had another defect in his eligibility, perhaps for as long as two years.

A company associated with Bob Day has been renting office space to a department of the Commonwealth Government – ironically, to provide the electorate office for Senator Day himself to work out of.

image - Senator Bob day.jpeg

Senator Bob Day, whose service as a Senator for South Australia from late 2014 until yesterday has fallen into legal doubt (image: SBS news)

To preserve the independence of Parliament, Australia’s Constitution prohibits parliamentarians from having financial relations with any part of the Commonwealth government.

According to media reports Day’s personal connection with the company owning the building relates to a mortgage guarantee, and the legal significance of this relationship is unclear, as is the question of whether he was personally a financial beneficiary of the leasing of office space.

If the commercial property dealings in issue do amount to a pecuniary interest for Bob Day, that would have rendered him ineligible to be elected or to serve as a senator.

It is also possible that other current parliamentarians could have similar connections to the many agencies of the Commonwealth Government.

The correct legal characterisation of this type of commercial connection is uncertain, and no similar case has ever been ruled on by a full challenge in Australia’s High Court.

It appears that the relationship between Day’s business and the Commonwealth department commenced in late 2014. That would mean the problem commenced after Day’s first election to the Senate in September 2013, and after his term of office commenced on 1 July 2014.

(Update: according to a 2 November report in The Guardian, the lease which create the issue only commenced on 1 December 2015, and the relevant federal minister wrote to Day on 7 October 2016 indicating that the Department of Finance intended to terminate it. Therefore, if that commercial relationship does have the effect of rendering Day ineligible to hold office, he should not have sat in the Senate from 1 December 2015 to the point in May 2016 when the Senate was dissolved, he was not eligible to be elected in July 2016, and he should again not have sat from the resumption of Parliament in August until his putative resignation this week.)

The Court dealt with a related issue way back in 1907. In the case of Vardon v O’Loghlin, the Court also had to decide a dispute about a Senate seat for South Australia. There had been a defect in the original count (to do with disputed informal votes) and some time after the election, one of the new Senators, Joseph Vardon, was challenged as not having been correctly elected.

The Court took a firm line in finding that the facts indicated that Vardon had never actually been validly elected, even after he had sat in the Senate for several months.

That judgment also decided that there is an important legal distinction between a senator resigning and a senator being found not to have actually been elected in the first place.

If the commercial relationship is a legal barrier to holding office, Day would have legally ceased to be a Senator in late 2014. His second election in July 2016 would also have been legally invalid.

Where a sitting senator resigns, the relevant state parliament fills the vacancy, by tradition accepting a nomination put forward by the relevant political party.

But if a senator was never validly elected, then the votes cast at the last election are re-examined to find a new winner from the ballots cast by voters. (In Vardon’s case, a new election was needed, but under modern electoral rules a recount of the most recent election ballots can be conducted.)

The matter is likely to be quickly referred by the Senate itself to the High Court for an authoritative interpretation.

Complexities behind the possible recount process

The 2016 election was a full dissolution of the national Senate, and voters in each state elected 12 senators using the single-transferable vote (STV) voting system.

Preferences marked on the voters’ ballots allow the counting officials to reallocate ballots among the candidates until up to 12 of them achieve the official quota of votes to win a seat, which for this election was a target of 81,629 votes.

Bob Day started the count with 30,312 votes, including 24,817 above-the-line party votes and around 5,495 personal first preferences below-the-line.

But after receiving preferences during the counting process he eventually found himself in 12th position, with 72,392 votes.

Day never did get a quota – as the 11 other successful candidates did – but he won the 12th Senate place for South Australia anyway as the last candidate standing, as the counting rules allow.

A re-examination of the July 2016 ballots might see the Family First party’s second candidate, Lucy Gichuhi, take the seat. She started the ballot count with just 152 votes, and was eliminated early with 222 votes, but if Bob Day was not validly on the ballot she might have received most of the votes cast for the Family First party.

If a recount is conducted, Gichuhi may not receive the same preference flows that Bob Day did, and if so the seat might go to the candidate who came 13th in the original count, Labor’s Anne McEwen, or possibly the candidate who came 14th, One Nation’s Steven Burgess.

A further complication is emerging relating to the design of the ballot paper. Parties which nominate two or more candidates are entitled to be grouped in a column of their own on the ballot paper, and Family First indeed had their own column for their two candidates in July’s election.

But if Bob Day was never a valid candidate, there might be an argument that Family First’s ballot column was also invalid, and that the 24,800 or so votes cast directly for the party in the box at the head of the column (called ‘above-the-line’ in Australia) do not count.

If the Family First party votes are disallowed, many of the votes will transfer to other parties through above-the-line preferencing, but they will likely be scattered widely and lose impact on the new final result.

Disallowing the Family First party votes would also be a perverse outcome. The design of the ballot clearly implies that these 24,800 voters wanted to make individual preferences for Day 1st, then Lucy Gichuhi 2nd, then followed by further preferences for other parties.

Voiding the vote markings in Family First party boxes would specifically eliminate Gichuhi from receiving these rankings, and artificially give each ballot’s 2nd preference to a candidate from another party – an outcome obviously contrary to the voters’ intentions.

Had Day’s candidacy been known to be invalid, of course, the party would have had the opportunity to nominate one or more other candidates.

While the High Court cannot substitute alternatives for what actually happened at the election, the solution the Court finds should seek to give fair effect to the intentions of the 24,800 Family First voters in question, as well as the 5,500 voters who put Bob Day first personally.

(Update: the more recent High Court judgement in Wood’s case in 1988 found that where one candidate in a ballot group was found to be ineligible, that was not taken to impact on the status of other candidates in the group. By analogy that would seem to mean that Lucy Gichuhi will be eligible to receive the above-the-line Family First votes if Bob Day is ruled to be an ineligible candidate.)


Shadowy politics behind the affair

The politics behind the management of this complex issue during the past month is only now emerging.

With the political control of the Senate closely balanced, it appears that Government ministers were seeking legal advice on the issue back in August, and the Minister responsible for parliamentarians’ office space actually acted to terminate the controversial lease before Bob Day’s surprise announcement in mid-October that he intended to resign.

Accusations are emerging that Day, and the Government, have been aware of the legal situation for several weeks, but preferred to allow the matter to appear to be a resignation so that Day’s seat would be filled by a nominee of the Family First party, rather than by the preferences of the voters cast in last July’s ballot.

The alleged intention behind that plan would have been to ensure a replacement who would be politically closer to the government.

The issue may also draw in the recent controversial conflict between the national Attorney-General, Government Senate Leader George Brandis, and the nation’s independent Solicitor-General, Justin Gleeson, who recently announced his resignation.

Among Gleeson’s last actions was to hint at a legal issue relating to “the composition of the Senate” in testimony to a parliamentary committee.

The fate of Bob Day’s seat looks set to be both a political and a legal drama.

Day in Court earlier this year

Ironically, it will be the second time Senator Day has come to the High Court’s attention this year.

In April Day challenged the constitutional validity of Parliament’s early-2016 reforms to the Senate voting system, which allowed voters to use optional preferencing and abolished the old above-the-line party-directed ballot system – under which Bob Day was first elected in 2013.

Day argued that the reforms would make it impossible for candidates such as him to be elected. Ironically, his close-run re-election in July this year proved his prediction wrong.

Day’s constitutional challenge to the amending laws was unanimously rejected by the bench.

The two ballot system changes, together with a rare full dissolution of the Senate, have made the new Senate elected in July the most democratically representative Senate in Australia’s 116-year history.


Update: both Kevin Bonham and Antony Green have excellent posts on the possible recount of the South Australian ballots, concluding than in normal circumstances Family First’s second candidate Lucy Gichuhi will win the seat. But if the High Court strikes out the Family First above-the-line box – which Green thinks unlikely – the chances of Labor winning the seat would become strong.

There is also an excellent background write-up of the Family First party by Mike Seccombe at the Saturday Paper, written about a week before the story of the ineligibility issue broke yesterday.

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This entry was posted on November 2, 2016 by in Australia, Constitutional courts, Current issues.
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