The discovery that he was a dual citizen, holding New Zealand citizenship, led to Western Australian Greens Senator Scott Ludlam announcing his resignation after nine years. He left New Zealand with his parents as a child of three before settling in Australia as an eight year old. He took Australian citizenship in his teens and presumed that was the end of the matter. This was an error for which he takes full responsibility. The Greens have lost their co-deputy leader.
Ludlam's departure means that the Senate has now had three senators, including Bob Day, the Family First leader, from South Australia, and Rod Culleton of the One Nation Party, who was also from Western Australia, declared ineligible to sit in the Parliament in the 12 months since the last election.
One is an accident but three is an epidemic. This is a disturbing turn of events. Furthermore, another case with some similarity to that of Day, involving David Gillespie, the National Party Member for Lyne, is currently under consideration.
Each of the three senators fell victim to Section 44 of the Constitution, which lays out the circumstances in which any person is 'incapable of being chosen or of sitting as a senator or a Member of the House of Representatives'.
The first of the clauses, which caused Ludlam's downfall, concerns citizenship and related matters. The second and third clauses, which brought down Culleton, refer to criminal conviction and bankruptcy/insolvency. The fourth and fifth clauses, Day's problem, concern matters to do with financial connections to government, such as holding offices of profit, pecuniary interest and related matters.
Taken together the purpose of the Founding Fathers was to rule out various types of person who were unfit to serve as parliamentarians because of personal incapacity, treason, conflict of allegiance, conflict of interest or potential corruption. The concerns of the Constitution are understandable, but like all constitutional provisions are subject to interpretation, and this can be done by the High Court either flexibly or in a black and white manner.
Interpretation of some provisions, such as Section 44(v) on direct and indirect pecuniary interest, were interpreted narrowly by the High Court back in 1975, but broadly in 2016 when brought down on Day's head. The matter of dual citizenship, probably not envisaged when the Constitution was drafted in the 1890s, has been held to be contrary to Section 44 (i). The historical overlap between British and Australian citizenship, including the right to vote, has muddied the waters.
In 1987 Robert Wood, elected as a NSW Senator for the Nuclear Disarmament Party, was ruled ineligible because he was a British citizen though a long-term Australian resident. Then in 1998 One Nation's first elected Senator, Heather Hill, was ruled ineligible because she had failed to renounce her British citizenship when she became an Australian citizen. She had come to Australia as an 11 year old.
"Constitutional lawyers may disagree but many of the 'crimes' seem to be technicalities and/or misdemeanours rather than dangerous breaches of the spirit of the Constitution."
Does the punishment fit the crime? My worry is that those caught out are generally small rather than big fish in terms of the legitimate concerns of the Founding Fathers with maintaining the integrity and high-standards of the new Australian Parliament. Constitutional lawyers may disagree but many of the 'crimes' seem to be technicalities and/or misdemeanours rather than dangerous breaches of the spirit of the Constitution. Potential political advantage blurs any sympathy for those ruled out even when honest mistakes have clearly been made.
There are several concerning consequences. Even though in these cases the balance of the Parliament has not been changed, because the replacements after an AEC recount or an internal party decision have come from the same party, the choice of these replacements has only indirectly been in the hands of voters. Often candidates down the ticket are just place-fillers rather than the best available.
The situation has arguably led to a weaker Parliament, though the replacements have been interesting people. Certainly it has led to a less experienced Senate at a time when the cross-bench and the Greens are playing a key role under great pressure.
Finally, the adverse impact has fallen disproportionately on minor parties and independents, which is not a good look at all.
John Warhurst is an Emeritus Professor of Political Science at the Australian National University.