TJ Ryan Foundation Research Associate, Graeme Orr, writes in Inside Story (10.4.17) about how the High Court keeps 'fertilising the thicket' of rules disqualifying federal Senate candidates. The author argues that simplification of the eligibility rules is long overdue.
'Whom should electors be permitted to elect? And do our electoral laws discriminate against newer and smaller parties? When two minor party senators from the class of mid 2016 – Bob Day and Rod Culleton – were recently ruled by the High Court to be ineligible to be elected, those should have been the central questions. Instead, attention focused on the legal minutiae of the cases, and on their consequences for the parties.
'Answering the “who” question, as I will argue, is simple. Electors should be able to elect any one of their own whom they choose.
'... For all their virtues, parliaments are highly partisan bodies. Is it any wonder that minor-party MPs are more likely to be referred to the court than major-party figures? Worse, parliaments reserve for themselves the right to waive concerns over qualifications – even those involving an issue arising during the term of an MP, such as when the family of the Coalition’s Warren Entsch supplied cement to the public service.
'Strangely, these parliament-to-court referrals can occur whenever it suits the parliament. So a senator might serve faithfully for five years before the Senate decides (perhaps because of a change in numbers) to refer, to the court, a question about his or her qualification at a long-forgotten election.
'Beyond such procedural peculiarities, our rules about candidate qualifications have deeper problems. They are archaic, and the High Court’s interpretation of them is often arcane.'