Liberal wins going to High Court?

By
Ben Raue
-
17

Another barrier has been put in front of Tony Abbott forming a minority government.

A constitutional provision prohibits anyone holding “an office of profit under the crown” from being elected to the federal Parliament.

In the 1990s, this  saw two cases where members of the House of Representatives lost their seats: Phil Cleary lost the seat of Wills after a 1992 by-election before winning it back at the 1993 election, and Jackie Kelly lost the seat of Lindsay after the 1996 election before winning it back at a by-election.

There has yet to be a case to determine whether this criteria covers local government councillors. While many councillors get elected to state parliaments, the last local councillor I can think of who was elected to federal Parliament was Mark Latham, who resigned as Mayor of Liverpool shortly after being elected to Parliament in 1994.

Last Saturday, three local councillors were elected as Coalition members of Parliament. Palmerston Deputy Mayor Natasha Griggs was elected as the Country Liberal Party’s Member for Solomon. Campbelltown councillor Russell Matheson was elected as the Liberal Member for Macarthur, and Mackay Regional Councillor George Christensen looks on track to win Dawson for the Liberal National Party.

It is entirely unclear whether such a High Court case would succeed. If it did succeed, the candidates would be very likely to win by-elections with swings towards them. Even still, it injects an element of unpredictability and instability. Without those three seats, Abbott would be unable to govern in a minority government.

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17 COMMENTS

  1. I thought there was a legislative amendment back in around 2004 which clarified that local councillors could run for federal parliament without having to resign their council seats. If there was a question-mark over the constitutionality of this, I would’ve thought it would’ve been considered back then. My recollection may be incorrect though?

    I thought the ‘office of profit under the crown’ is intended to refer to specifically to public servants. The question would probably revolve around what the actual legal status of local councils is, and that is a very interesting question.

  2. My understanding is that the payment local councillors received is considered as a stipend, essentially a reimbursement for expenses incurred and is therefore not considered an office of profit.

    In any event, it wouldn’t be an issue unless they maintained that office after taking office. Since they’ve not yet even been declared, the writs haven’t been returned and they’ve not yet taken their seat, they need only resign before then to remove all doubt. Still and all, I believe this one has been tested in the negative.

  3. Natasha Griggs officially resigned as an Alderman on the Palmerston City Council before loding her nomination with the AEC.

  4. @Peter I’m with you on local councillors not counting, but the AEC Candidate Handbook says that you’re not allowed to hold an “office of profit” at the time of nomination (I’m assuming this is the correct interpretation). If it was found that councillors were ineligible then it wouldn’t matter if they resigned now.

  7. And several councillors running for the ALP. Neil Reilly in Gilmore, Mike Brunker in Dawson, Belinda McNeven in Hinkler, Kevin Duffy in Calare, to name a few.

  8. Labor won’t need to go to high court to form a government. No-one can seriously think that Oakeshott will side with the conservatives and that Abbott will give Katter anything near what he wants. We are more likely to see Hanson-Young as the Liberals immigration spokesperson.

    On the topic, it would be crazy if this was upheld in an Australian Court. We would have 20 unnecessary by-elections before the next federal election, let alone the state.

  9. Here in the United Kingdom, there were (during the last Parliament) several MP councillors and in Wales Peter Black (Lib Dem AM for Wales South West) has been a councillor in Swansea for over a decade with no one objecting to the idea at all.

  10. I believe we currently have at least 4 state MPs in NSW who are also currently serving as councillors. The fact that local government is established under state and territory legislation, and not constitutionally recognised, would seem to make such a court challenge very difficult to uphold. Having said that, I am fully in favour of constitutional recognition of local government, and if that were to happen one day, it may well change this.

  11. We are talking here about section 44 of the constitution, which does not apply to state MPs. There are already differences between eligibility for state Parliament and federal Parliament due to Section 44.

    At the moment we have no sitting councillors in federal Parliament, and haven’t had any for about 15 years, that is why this point is untested.

    George Williams has given the High Court case a chance of succeeding, I think it is a genuine point of uncertainty.

    I don’t really get how local government not being recognised in the constitution would make a difference.

  12. Not sure if this is still current, but may be of interest:
    http://www.aph.gov.au/library/pubs/rn/2002-03/03rn21.htm

    Williams gives it a 1 in 4 chance of succeeding.

    Yes, I was not suggesting that the situation at state level is the same, just providing the further context for Harry that we do have situations in Australia where people simultaneously hold office at more than one level of government.

  13. The guru on MP disqualifications is Professor Carney, at Bond Uni.

    The key issue is whether the essentially independent, elective nature of local office makes it not under the Crown in the sense of answerable to an executive government.

    Ps. The 2004 issue involved Qld Labor law that tried to limit (conservative) Qld councillors ability to stand for parliament. The Courts struck down that part of the law applying to Federal elections, effectively saying the State government couldn’t restrict Federal candidature.

  14. At the end of the day all the armchair experts in the world won’t make this decision – No offence intended to the correspondents above 🙂
    I think though that this should weigh heavily in the deliberations of the independents. Their consistent stated aim is for stable government and they have mentioned the instability that could be caused by a by-election if there was only a majority of one. It would appear that there will be at least one ( Boothby) and possibly 2 or 3 more challenges, all in seats which were fairly close but won by the Coalition. Given they were concerned about one by election I would imagine they’d be pretty worried by the thought of 4 or more. While in previous cases the elected member still won, I’m not convinced this would be the case this time.

  15. As I understand it, Jane Prentice the member elect for Ryan has not resigned from the Brisbane City Council.

  16. Kath,

    By the same token you could argue that Labor is deliberately making a big fuss over this in the hope of talking up “instability” if the Indies back the Coalition.

    I’m sure once the Indies make their decision (esp if they back Labor), these “challenges” will be magically dropped and forgotten about

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