As became clear early in the campaign when the Victorian Liberals lost three candidates in safe Labor seats to section 44 concerns, the High Court’s strict interpretation of the citizenship requirement, and the ongoing lack of clarity around what constitutes an “office of profit under the Crown”, are still proving difficult to address even for the major parties. This is despite new regulations providing a qualification checklist for candidates to fill out and, where necessary, provide documentation to support.
The citizenship saga of the previous parliament exposed how lax all parties were in their vetting of candidates, including Labor, which had collectively sworn blind its internal processes for checking candidate eligibility were perfect, before losing five MPs and senators. The High Court’s standards are so strict that laborious efforts are now required to ensure a candidate with foreign ancestry is eligible — as the Greens’ Canberra candidate Tim Hollo has demonstrated.
Laborious means resources, time and effort — taxing even for established political parties with administrative infrastructure. For minor political parties, or sham parties like Clive Palmer’s outfit, it will likely prove expensive indeed — sufficient that UAP appears to have not bothered trying, in some cases, even to find candidates who at least live where they’re standing. Perhaps Clive can hire some backpackers to stand in some difficult seats.
More problematic is that the requirement that candidates not be an undischarged bankrupt is being treated as self-assessed by some candidates. Former One Nation senator Rod Culleton has nominated for the Senate and is an undischarged bankrupt, in violation of section 44. A Senate candidate for Oswald Mosley’s hastily cobbled together far-right party is also bankrupt, but declares she doesn’t think she is and so can stand.
This has exposed a significant flaw in the regulatory powers of the Australian Electoral Commission. It can’t refuse to accept the nomination of someone even when it is aware they have blatantly lied about their eligibility. Culleton and Mosley’s candidate will both appear on their respective ballot papers. All the AEC can do is refer them to the Federal Police for a false declaration. That’s what the AEC has done with Culleton, announcing:
… the AEC has referred Mr Culleton’s candidate Nomination Form to the Australian Federal Police (AFP) to examine if a false declaration has been made under provisions of the Criminal Code Act 1995, relating to his status as an undischarged bankrupt and the prima facie disqualification of such persons to be chosen or to sit as a Senator or Member of the House of Representatives under section 44(iii) of the Constitution.
The AEC can only reject a nomination if the candidate’s paperwork has been filled out incorrectly — as the commission pointed out regarding Culleton:
… the provisions of the Electoral Act do not [their emphasis] give the AEC or any AEC officer the power to reject a fully completed candidate nomination for the Senate or the House of Representatives, regardless of whether any answer to a question of the qualification checklist is incorrect, false or inadequate.
None of these candidates look likely to be elected. Mosley’s own defiling of public life with his presence will end shortly. But to the extent they attract votes in seats where, by law, they are not permitted to stand skews results. This is especially problematic for the Palmer candidates. In published polls, UAP is attracting between 2.5% and 4%, and likely more in regional Queensland seats. Preferences from UAP candidates who may be ineligible to stand may thus be decisive in some seats.
This issue worried the Joint Committee on Electoral Affairs when it considered the citizenship debacle. “Can a political party manipulate an election by deliberately nominating an ineligible candidate and then contesting the successful candidate on the basis of preferences? Could a foreign government support a candidate to do the same?” This was a “significant, but previously unexamined” issue, it found, which “has the serious potential to affect the overall result after the election has concluded, at any point during the term of Parliament” given that the opinions of eminent lawyers differed over the impact of an excluded candidate’s preferences.
The government, however, takes a sanguine view of the situation and thinks the preferences of excluded candidates aren’t an issue. And the committee itself rejected the idea that the AEC be given the power to vet and eliminate candidates found to be ineligible, saying it would “expose the AEC to accusations of bias”.
Legally, the impact of excluded candidate preferences may be unclear, but in terms of Australia’s democracy, it is very much an issue. In a tight election — and two of the last three elections have led to minority governments — the preferences of candidates excluded as a result of blatant neglect of or contempt for the requirements of section 44 (let alone deliberate sabotage) could affect the outcome of contests in individual seats and, therefore, who governs the country. And the body charged with running our elections can’t do anything about it.
“The citizenship saga of the previous parliament exposed how lax all parties were in their vetting of candidates, including Labor, which had collectively sworn blind its internal processes for checking candidate eligibility were perfect, before losing five MPs and senators”
In fairness, Labor had relied on the previous court rulings on this issue. The current High Court effectively threw the “reasonable steps” test in the bin.
I rarely criticise the HCA’s decisions, but I think they simply got that one wrong and went far too black-letter-law, and the consequences are as you’ve described- in all likelihood, in the aftermath of the election the HCA are going to hear dozens of challenges, some will probably succeed and it will be another circus of byelections and accidental Senators.
There is no way the AEC can be made capable of vetting every candidate who runs, unless you insist candidates are locked in like a year in advance. Even then they’ll miss things. And asking candidates to stand so far in advance is unreasonable.
Hopefully the government (whoever it is) will run a referendum in the next term to fix this up- whether one allows dual citizens to stand period, or allows dual citizens to stand if they renounce all other citizenships under Australian law (this would be a simple step the AEC could police, and avoids the tricky bit- discovering all possible dual citizenships under overseas law AND jumping through the hoops of that foreign country, which is not so easy for some of them.
The gaping hole in our democracy is not the fault of the Constitution.
Nor is it the fault of the Guidelines to candidates which clearly spells out their obligations.
The gaping hole in our democracy is the fault of the Political Parties. They have denied the existence of fault when their members failed to comply with s.44. Malcolm was in contempt when he announced “as the High Court will so rule”. Barnaby denied fault and was proven wrong (not only about s.44). All parties delayed referring their members’ cases for judgement (having failed to check eligibility themselves).
The huge honking gaping hole is not s. 44 at all. It is the Party enforcemment of the whip system to oblige Members to vote otherwise than in representation of their electorates. This is nothing short of corruption.
I hear you ‘Admin’ – politicians don’t want to do anything about it.
Any way we can make them personally responsible for the cost of both High Court actions, and (Pollyanna here) By-elections if they lose? Perhaps disbarment from standing again?
Seems to me there is no real consequence.
At the very least it’d be amusing seeing them refuse to debate such changes.
I am in no doubt that Palmer is playing the preference system. To allow ineligible candidates to stand and create preference flows is unconscionable. I predict they after this election a collective “$&@?” Will issue forth and changes will be sought, but may be unattainable.
The Electoral Act does not just allow you to do a pre-poll. You need to satisfy one of the grounds set out in Schedule 2 to the Act, the most lenient of which states; “The person will not, at any time during the hours of polling on polling day, be within 8 kilometres by the nearest practicable route of any polling booth in the State or Territory for which the person is enrolled”.
How many people pre-polling just want to vote early and do not in fact meet one of the grounds? Many, I suspect.
What if it is subsequently established that you were in fact on election day within 8 km of a booth? If you pre-poll vote and do not meet a ground, is the vote invalid? If a candidate does not win their particular election, could they challenge the votes of the pre-poll voters in the Federal Court?
Yes, why not. The law is the law and just as section 44 has to be strictly applied why not the letter of the law as set out in the Electoral Act?
Julie Hoskin is not a Senate candidate, she’s a candidate for the Division of Bendigo. And she is bankrupt because she can’t pay her legal bills resulting from her long series of challenges to the building of a mosque in our fair city.
She knows she’s bankrupt. She even indicated on the declaration form that she’s bankrupt, but in a bit of Roberts-esque (I’m not British because I think I shouldn’t be) logic her bankruptcy is “unjust”. But the AEC are powerless to stop her nominating.
So much for the LNPs proposal to prevent further s44 fiascos. Her nomination for Mosley’s Brwonshirts, and Culleton’s, show this to be yet just another failed policy from a failed government.