An attempted review of the legal can of worms opened by Scott Ludlam’s shock resignation.
The situation as I understand it. Scott Ludlam has vacated his Senate seat after it came to his attention that having lived here nearly all of his life and being naturalised as an Australian did not vacate his New Zealand citizenship. This caused him to fall foul of Section 44(i) of the Constitution, which disqualifies those who are “a subject or a citizen of a foreign power”. Those who drafted this would never have imagined it might apply in Ludlam’s case, since Australians and New Zealanders alike were then British subjects – Australian and New Zealand citizenship did not exist until shortly after World War II. In my view, the section could do with a redraft – or better yet, the matter of disqualification should be removed from the Constitution altogether and left to a normal act of parliament, which has worked happily enough in the states without triggering such unproductive disqualifications as those of Robert Wood, Phil Cleary, Jackie Kelly and Heather Hill.
There now arises the issue of who replaces him, covering ground familiar from the situations faced by Bob Day and Rod Culleton, respectively due to a pecuniary interest issue and a conviction for which Culleton was awaiting sentence at the time of the election (that the conviction had since been set aside did not avail him). In both cases, the Senate referred the matter to the High Court, which ruled that neither had been validly elected. This resulted in recounts being held for their respective Senate races in South Australia and Western Australia, and the election of the next candidates along on their party tickets, Lucy Gichuhi and Peter Georgiou.
If it plays out the same way this time, there seems little reason to doubt that a further Western Australian recount will deliver a seat to the Greens’ third candidate, Jordon Steele-John, a 22-year-old disability advocate with cerebral palsy. Steele-John wrote on Facebook today that “if it comes down to it, I’d be happier putting the choice of candidate back into the hands of our party membership”. I’ve heard it suggested that the High Court might not in any case be interested in having the matter referred to it, since Ludlam has resigned and there are no new points of law to be adjudicated on as there were in the case of Bob Day, who had likewise already resigned over the separate matter of his insolvency (UPDATE: Antony Green in comments demurs).
In either case, it seems likely the matter will eventually be determined by the Western Australian Greens as a casual vacancy, and it’s impossible to say how that will play out as there has been none of the usual jockeying for position, since the situation has arisen out of the blue. Antony Green has floated the idea that Ludlam could resolve his citizenship issue before the casual vacancy officially emerges, then simply take his own place. Failing that, the four Greens in state parliament might be thought obvious contenders, those with the most parliamentary experience being Robin Chapple and Alison Xamon. Chapple is 70, which might be thought discouraging, while the notoriously heavy demands of running a federal political career from Western Australia may not sound attractive to Xamon given her family responsibilities. Newly elected at the last election were Tim Clifford and Diane Evers. The position may also be of interest to Lynn MacLaren, whose eight year career ended in her narrow defeat in March.
Another issue relates to the question of the long-term and short-term Senate positions. After a double dissolution election, the Senate gets to decide which of its members serve six-year and which three-year terms, and last year they chose to do so on the basis of the order of their election. As the Greens’ top candidate, Ludlam was third elected and duly got a long term; twelfth elected was second placed Rachel Siewert, who got a short term. If a simple recount was conducted excluding Ludlam, Siewert would them be third elected instead, and would presumably have a claim to take the long-term position. Steele-John would then be elected ninth, and on declining to take the position, that would be the vacancy that would be filled. However, things get a bit murky around about here – can the Senate promote a Senator from a short to a long term in this fashion? Might the court evade this issue by ordering a different type of recount?