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.