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Ineligible candidates

I am dubious about addressing a subject of law, particularly in an environment where my arguments will probably be taken apart by such a distinguished practitioner as Malcolm B Duncan.  However, the situation in Wentworth, and the various other seats where Labor candidates are allegedly ineligible (I am afraid my interest does not extend to finding out who they are), has led me to some legal musing. 

The Labor candidates’ supposed lack of eligibility is based on section 44 of the Constitution, which says that a person, who, among other things not currently relevant, ‘holds any office of profit under the Crown,… shall be incapable of being chosen or of sitting as a senator or a member’.  This provision was discussed in some detail by the High Court in the case disputing the election of Phil Cleary, who ‘won’ the seat of Wills following Bob Hawke’s retirement (Sykes v. Cleary, [1992] HCA 60; (1992), 176 CLR 77).  Cleary was, at the time, still on the books of the Victorian Department of Education, and was found ineligible to stand for parliament.

One of the points considered by the High Court was when did a candidate start ‘being chosen as a senator or member’.  Common belief now seems to be that the person must not hold an office of profit under the Crown when they put in their formal nomination.   

Interestingly, in light of the current situation, the High Court did not make a binding decision that the person standing for parliament had to be eligible on the day they put in their nomination.  The actual wording of the majority judgment was that there “may well be a reason for concluding that, if a candidate is not qualified on nomination day, he or she is incapable of being chosen”.  While the Court indicated by these words that this was probably the decision it would make, it did not actually make that decision because it was not necessary in the particular case.  

Without giving a learned lecture on the theory of precedent and such, this means in my view, that it would still be open for the lawyers for Mr Newhouse, for example, to argue that some other date should apply.  What it further means is that even if Mr Turnbull could prove that Newhouse did not resign from his position until after his nomination, he (Turnbull) might not win in court. 

The main purpose of the constitutional provision is apparently to stop current public servants being members of parliament.  The primary reason for this is a separation of powers argument, it being undesirable to have a person as both a member of the executive and legislature.  Such a person would almost certainly be actually or apparently compromised in one or both roles. 

The constitutional words say ‘incapable of being chosen’.  It seems a fairly logical argument that a person is, in any case, incapable of being chosen until someone does the choosing.  You could argue that what the Constitution actually requires is that the candidate no longer has ‘an office of profit’ at the time that the first person votes.   

Two final ideas come to mind.  Firstly, the whole thing is a storm in a teacup.  Nobody is suggesting that any of these candidates would be ineligible on election day, or on the day they took up their seats if they should win.  This is what the constitutional provision is trying to prevent, and it has succeeded.  The actual argument is about minutiae.   

Secondly, an argument about minutiae may be a serious tactical error by the person making the complaint.  In 1996 Jackie Kelly won Lindsay, beating Keating Minister Ross Free.  The Court of Disputed Returns (the High Court in another guise) found that she had been ineligible, and a by election was ordered.  Kelly won again, and the by election victory both consolidated her position, giving her battler status, and demolished any chance Free had of resurrecting his career.  People disputing election results should beware of hardening the resolve of the electors.

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The beat, beat, beat of the TOM TOM

TOM: Are you there? You have figured so strongly on this thread and elsewhere in recent days that I assumed your name deserved italics.

I am reliably informed that TOM stands for "The Other Malcolm" (ie in the electorate of Wentworth). Perhaps after MBD's disqualification and  today's events that had best be changed to "Tossed Out Malcolm."

As Confucius said: "If the Liberals' caucus won't have you, who will?"

Same again

Thanks for the comments. Malcolm, I think the reference was paragraph 28 or thereabouts. Actually, I am not entirely a layman although I will admit to being a bit out of practice. The argument is obviously moot now anyhow. By the way, as my non existent biography states, I went to school with the other Malcolm (Turnbull) and I don't hate him. Wouldn't vote for him, but next to Abbott and Nelson he looks like a towering figure.

Sykes v Cleary

Sorry to take so long getting back, D Markham, the reference you give was considering the position in an election where only one candidate was standing and that candiate's nomination was invalid.   Obviously obiter for the majority judgment. I maintain what I said, although I must admit there is something wrong with the internet version of the decision. Full of mistakes and hard to follow. Check the Commonwealth Law Reports for the authorised version (and, with respect, that is not to tell you to suck eggs but to give the rest of our readers some homework.)

One of the nice things about Webdiary is that all sorts of specialists can occasionally go off and wank in their own corners while the rest of us get on with blogging - but, gee, aren't there a lot of lawyers on here? Evening, Margo.

The School Bully shows his true colours.

Malcolm Turnbull, the fast-tracked Howard choice for a fascist future "leader", has threatened his constituency that he will force a by-election if he is defeated.

Some mild-mannered voters in Wentworth may see this as just a desperate move by a "Bankrupted" millionaire but, if they look at it more closely, it is an example of the type of fascism that Howard has been pushing sneakily for over 11 years.

I can't tell them how to vote - but he not only thinks he can he also believes that he can threaten them with an "or else". Fair dinkum.

The unmitigated gall of these "New Order" aspirants!

Labor made the same mistake in 1996, when an unkown person won the seat of Lindsay and Labor challenged it.

A by -election was held and the people, quite rightly in my opinion, increased their democratic intention to choose who THEY wanted.

A lesson I sincerely hope, that this arrogant pompous individual may learn at his peril.

He must see himself as another G.W. Bush - "You are either with me or against me"! I would certainly choose the latter.

We don't need any more of his type in what, I hope, will be our new Parliament.


Off the mark

Mr Graham, normally I don't read anything you post because of its verbosity and irrelevance but I did happen to read this one. You couldn't be further off the mark - the Runt and TOM hate one another - well everyone hates TOM.

The Runt tried to torpedo TOM's career by making him the Minister who sold the Snowy Mountains Scheme. Much as I dislike TOM, to his credit, he outmaneuvered the Runt on that one.

When the Downer sounding was taking place, TOM was running around saying he'd be PM by the end of the week.    There's no love lost between him and the Runt and he's one of the few people I have ever met with an ego bigger than mine. Can't wait for the by-election.

Thank you Malcolm for reading my post.

G'day Malcolm,

One of the major points of appreciation of Webdiary is that, with the exception of personal insults and defamation, people like me can have a say.

"Go placidly amid the noise & haste, & remember what peace there may be in silence. 

As far as possible without surrender be of good terms with all persons.

Speak your truth quietly & clearly: and listen to others, even the dull & ignorant; they too have their story."

Let's hope for an election win for Australia Mal - any party but Howard's "New Order".

Cheers Ern G.

Richard Ackland closer to David than Malcolm ...

His SMH article suggests that the by-election is not certain (and anyway by-elections in these circumstances tend to be won by the person who won the first run, usually by an increased majority)

Bloody big teacup - you asked for it

Malcolm B Duncan replies (liability is limited by Professional Standards Legislation):

The provision in s 44 (iv) of the Constitution is an interesting one. Section 44 itself is curious.   While I agree that, from a layman's point of view, it might be a bit anomalous that one has to resign before nominating, there are some valid reasons for it - reasons that are being increasingly eroded by the Party system as it operates these days. The basis of the idea I think is that to contest an election, one should not be drawing funds to support oneself from the Crown. I haven't checked the Constitutional Debates about it but that strikes me as reasonable. Why should I, as a private individual, have to take time out from my capacity to earn an income while an opponent who is on a salary from the people takes time off on pay to contest against me? The argument is obvious nonsense of course.

What should happen is that, when one nominates, one undertakes to suspend all money making activity and be funded equally at public expense. My experience is that you can run a good campaign for about $16 K and you pay us all $2K a week for having the guts to nominate. At least that would stop a lot of dribblers nominating but you might get a lot of people who saw $2K a week as a big bonus - so what? Isn't a free democracy worth a punt?

One of the things you have to bear in mind is that, unless the High Court as newly constituted, overrules itself, it will interpret the words of the Constitution strictly as they were meant in 1901. That is the chain of the Constitution which is about our neck. I, for one, am happy to wear it.

In Sykes v Cleary [1992] HCA 60 which you cite, the majority said this:

22. Moreover, the long-standing reasons for disqualifying Commonwealth public servants from membership of the Houses of Parliament have similar force in relation to State public servants. The risk of a conflict between their obligations to their State and their duties as members of the House to which they belong is a further incident of the incompatibility of being, at the same time, a State public servant and a member of the Parliament.

23. It follows that the first respondent, as the holder of an office of profit under the Crown, fell within s.44 which provides that any person who falls within par.(iv) "shall be incapable of being chosen ... as a ... member of the House of Representatives". The petitioner submits that the word "chosen" extends to incorporate all the procedural steps necessarily involving the candidate in the electoral process so that the disqualification precludes participation in that process, including the step of nomination. On the other hand, the first respondent and the Attorney-General submit that a member is "chosen" when the member is declared to be elected, that is, when the poll is declared. On this interpretation of the provision, a candidate is disqualified only in the event that the disqualifying characteristic is in existence when the poll is declared. If this interpretation is accepted, the first respondent was not disqualified because his resignation took effect on 16 April 1992, before the declaration of the poll on 22 April 1992.

25. However, this interpretation must be rejected. As a matter of language, the disqualifying characteristics set out in s.24 of the ss.7, 41), so that it is the polling day rather than the day on which the poll is declared that marks the time when a candidate is chosen by the people. Of course, an absentee or postal vote may be cast before the polling day and, in situations of emergency, arrangements may be made for the casting of votes after the polling day ((21) The Electoral Act, s.241). But these characteristics of the polling do not justify the conclusion that the declaration of the poll, which is the formal announcement of the result of the poll, amounts to, or even coincides with, the choosing by the electors of the member for the relevant electoral division. The declaration of the poll is the announcement of the choice made; it is not the making of the choice…

27. Reflection on these considerations persuades us that the words "shall be incapable of being chosen" refer to the process of being chosen, of which nomination is an essential part ((23) See Harford v. Linskey (1899) 1 QB 852, at p 858). That interpretation is supported by Constitution which provides:

In that context, the words "shall be incapable of being chosen" must refer to the process of being chosen. It can scarcely have been intended that a member of Parliament could, while holding that office, stand for election for the other House of Parliament and, after the counting of the votes but before the declaration of the poll, resign the office which he or she then held, thereby ensuring his or her eligibility to be declared elected as a member of the other House.

That means, of course, David Markham, that your argument about the equivocal nature of the statement (which I haven’t found in the judgment – please give me a paragraph reference) is wrong. I don’t blame a layman for getting that wrong – difficult stuff Constitutional Law.

In the next case to be considered, Free v Kelly [1996] HCA 42, Brennan CJ declined to reconsider Sykes v Cleary and felt he was bound by it.

He now lives in the same building as my parents – I regard him as a constituent.

As to your separation of powers argument - that is a furphy. In WWII there was a joint cabinet and Dixon J, while he was still a member of the High Court was appointed as a special ambassador to the Rebel Colonies.

There will be a by-election at least in Wentworth as Newhouse’s nomination was made at a time before he had resigned his office of profit under the Crown. If no-one else does it, and if the result is as close as I expect it to be, just call me The Petitioner.

Come and have a beer with Duncan.

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