To be able to stand for election to either the House of Representatives or the Senate, a person must be:
- At least 18 years old; and
- An Australian citizen; and
- An elector entitled to vote or a person qualified to become an elector
A person is incapable of being chosen or of sitting as a senator or a member of the House of Representatives, if that person:
- is under any acknowledgement of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or citizen of a foreign power, or
- is attainted* of treason, or has been convicted and is under sentence, or subject to be sentenced, for any offence punishable under the law of the Commonwealth or of a State by imprisonment for one year or longer, or
- is an undischarged bankrupt or insolvent, or
- holds any office of profit under the Crown, or any pension payable during the pleasure of the Crown out of any of the revenues of the Commonwealth, or
- has any direct or indirect pecuniary interest in any agreement with the Public Service of the Commonwealth otherwise than as a member and in common with the other members of an incorporated company consisting of more than twenty-five persons.
(*This is based on the passing of a bill in the parliament to ‘attaint’ persons who are accused of treason. This is now considered to be unconstitutional.)
But section 4 above does not apply to any ministers of state for the Commonwealth or ministers for a state, or to the receipt of pay, half pay, or a pension by any person as a member of the armed forces or to the receipt of pay as a member of the military forces by any person whose services are not wholly employed by the Commonwealth.
If a senator or member of the House of Representatives:
- becomes subject to any of the 5 items listed above, or
- obtains a benefit of any law relating to bankrupt or insolvent debtors
- takes or agrees to take any fee or honorarium for services rendered to the Commonwealth or for services rendered in the Parliament to any person or State
their place in the Senate or the House of Representatives will become vacant. There have been recent cases of disqualification.
Bob Day (2016)
In November 2016, the government indicated that it intended to ask the Senate to refer to the High Court, Bob Day’s qualification as a Senator, to determine whether he has breached section 44(v) of the Constitution (i.e. item 5 above). This was because Senator Day’s office is in a building that he has an interest in and the Commonwealth’s contract for the office may be of financial benefit to Day. However, Day resigned from the Senate, essentially pre-empting any decision against him. But, the question remains as to whether he was eligible to be elected on July 2, 2016. If the High Court rules he is qualified then his resignation will be accepted, and the South Australian Parliament will fill his vacancy with a candidate chosen by Day’s Family First Party. If the High Court rules he is disqualified, then his vacancy will be filled by a recount of senate ballot papers, with his name excluded.
Rod Culleton (2016)
Rod Culleton was elected as a Senator for Western Australia in 2016 and was a member of the One Nation Party. Under Section 44 (ii) (see item 2 above) of the Constitution anyone who is under sentence or awaiting sentence for an offence carrying a jail sentence or one year or more is disqualified from being a member of either house of parliament. Culleton was convicted of larceny in March 2016 in New South Wales. He appealed the conviction and it was annulled on August 8, 2016. So, at the time of the election on July 2, Culleton had been convicted of larceny. A second larceny change in Western Australia, is yet to be heard in court. Apart from the larceny charges, Culleton was declared bankrupt in the federal Court. Section 44 (iii) (see item 3 above) disqualifies any member of the parliament who is bankrupt or insolvent. The court granted a 21 day stay on the order as Culleton has announced that he will appeal the decision. If the appeal fails, Culleton’s position in the parliament would be declared vacant. Despite the 21 day stay, Stephen Parry, president of the Senate, has received copies from the Federal Court Registry which lists Culleton as an undischarged bankrupt. As a consequence, Stephen Parry has written to the Western Australian Governor stating that there is a vacancy in the Senate because Culleton has been disqualified. In this case, Culleton will be replaced by a person from the same political party for which he was elected (One Nation), and the fact that he has resigned from the party is immaterial. It is still possible that Culleton may have been ineligible to stand for election, if the larceny charge is found to be pertinent. If that turns out to be the case, there will be a countback of the senate ballots, with his name removed. So, it is possible that Culleton could be found to be ineligible to stand for election, and ineligible to continue as a senator, both in the same parliament. This seems to be unique, so we wait for the High Court decision on his eligibility to stand, with bated breath.
Robert Wood (1987)
In 1987, English born Robert Wood was elected as a Senator for New South Wales, representing the Nuclear Disarmament Party. After being elected he faced a court challenge from one of the unsuccessful candidates, Elaine Nile. Although that case was dismissed in December 1987, it was discovered that, when he applied for a passport after entering parliament, that he had never taken out Australian citizenship. The High Court decided that he was not qualified to be elected in that he was a citizen of a country other than Australia [Section 44 (i); see item 5 above], and his term ended in May 1988. A recount of the ballot resulted in the election of Irina Dunn, who had been second on Wood’s party ticket.
Heather Hill (1998)
In 1998, English born Heather Hill was elected as a Senator for Queensland. Hill was the manager of a Family Resource centre in Ipswich and when the Liberal National Coalition withdrew funding she was motivated to become involved with the One Nation Party. Hill intended to stand for election, but to do so she had to become an Australian citizen. She applied to do so and it was granted in January 1998. At the time she also applied for an Australian passport, but because that had not arrived at a time when she needed to travel to New Zealand, she used her British passport. When concerns were raised about her eligibility, she contacted the High Commission of the UK and arranged to renounce her UK citizenship. However that did not alter the fact that she had been ineligible to stand at the time of her election, and the High Court decided her election was invalid.
This is where this gets very interesting. English born Tony Abbott was born to an Australian mother and British father in London and emigrated to Australia in 1960, when he was about 2 years old. While a university student some 20 or more years later, he held a British passport and apparently has held an Australian passport since 1981. Senator Derryn Hinch, elected to the Senate in July 2016, has stated that Abbott should produce a dated copy of the relinquishment of his UK citizenship. This has not been forthcoming from Abbott, although his office has stated that he is not a citizen of any country other than Australia. That may be the case now, but was it when he was elected? We will wait and see, but given Abbott’s poor judgement, I think it is a fair chance that he could have stuffed this one up too.
Late news: Tony Abbott has tweeted (13/7/2017) a copy of a document (dated 7/1/2015) from UK Visas and Immigration stating that he renounced his British citizenship on 12/10/1993. Malcolm Turnbull will be pleased that his 1 seat majority in the House of Representatives is intact, and the Opposition will be pleased that Tony Abbott is still around.