For the better part of a week now, federal politics has been consumed by the spectacle of two minor party parliamentarians confronting eviction from the Senate.

Family First’s Bob Day has gone already, while Rod Culleton of One Nation faces a multitude of legal hurdles of he is to keep his spot — starting with a High Court challenge to his election that was endorsed in the Senate yesterday by Pauline Hanson herself.

Most commentary has focused on what the government knew about Bob Day’s difficulty and when it knew it, the impact of One Nation’s instability and eccentricity on the government’s legislative program, and the apparent incapacity of many of our politicians to play by the rules.

However, surprisingly little has been said about the rights and wrongs of disqualifying two individuals who were, whatever else might be said about them, duly elected by substantial numbers of voters.

In their different ways, Day and Culleton have both fallen foul of section 44 of the constitution, an instrument drafted in the late 19th century to ensure that only the right sort of person could make it to Parliament.

This is philosophically tricky territory, as illustrated by the many dictatorships that control sham elections by exercising a veto over who gets to run.

Like much else in the constitution, section 44 handles this delicate task in a manner whose shortcomings have long been recognised, but for which reform is consigned to the too-hard basket.

The section lists five grounds for disqualification:

  1. Holding a direct or indirect pecuniary interest in an agreement with the government, which is what forced Bob Day out sooner than he had hoped;
  2. Conviction, or being subject to conviction, for an offence punishable by more than a year’s imprisonment, which is the basis of the action against Culleton;
  3. Bankruptcy and insolvency, which loomed as deal-breakers for both Day and Culleton even if their other problems hadn’t got them first;
  4. Citizenship or any other kind of allegiance to a foreign power; and
  5. Holding an office of profit under the Crown.

There are good arguments to be made that each of these is unnecessarily expansive, particularly when one considers how they have applied in practice.

The demise of Bob Day’s career in politics might not be breaking too many hearts on the liberal end of the spectrum, but the specific nature of his infraction — being owed money by the company from which the government had a lease arrangement with respect to his electorate office, after selling the property to it in an evidently insufficient bid to avoid a conflict of interest — would strike most as rather technical.

As the ABC’s Barrie Cassidy mused on Twitter last week: “Is there a politician who has guaranteed a loan for anybody with an agreement or arrangement with the Commonwealth? If so you’re done.”

Still more curious is the proposed disqualification of Culleton for the “theft” of a $7.50 car key — he had, in fact, removed it from the ignition of a tow truck whose driver was attempting to repossess a car he was leasing, and expressed his displeasure with the situation by throwing it into a ditch — for which he ultimately escaped conviction.

[Keane: minor-party wackos are not ‘average Australians’]

That has not availed him, as section 44 invokes the potential maximum sentence for anyone subject to be sentenced, and Culleton was awaiting sentence at the time of his election.

It’s also worth asking if the bankruptcy prohibition, which was drafted at a time when Dickensian debtors’ prisons were a recent memory, really performs its presumed service of keeping Parliament free of persons with undue sensitivity to financial interests.

As for the prohibition on those with an “allegiance to a foreign power”, which was devised to keep Parliament free from the taint of sedition, it has produced nothing in recent times but mischief.

It was last invoked in 1998 at the expense of One Nation’s Heather Hill, who won the party’s Queensland Senate seat before falling foul of her dual British citizenship — a fact no one could reasonably pretend would have affected her conduct as a parliamentarian, or caused the party’s supporters to think twice about voting for her.

That’s to say nothing of the “birther” theory surrounding Tony Abbott, which was given a stir in the Senate yesterday by Derryn Hinch.

Perhaps most glaring of all in its obsolescence is the disqualification against any and all who hold “office of profit under the Crown”.

The scope of government has increased immensely since this was drafted before federation, and those in its service face unconscionable burdens if they wish to pursue their right to seek office — particularly if they run for the Senate, where they may have to wait for up to a year before taking their seats if elected.

[Family First loses sugar daddy as money-bags Bob Day hits the skids]

Voters illustrated how little concerned they are with the abstract principles involved in 1993, after independent Phil Cleary’s Wills byelection victory was disqualified because he had not resigned from a position as a teacher, and 1996, when Jackie Kelly fell foul of her position with the Royal Australian Air Force after winning the western Sydney seat of Lindsay for the Liberals.

When an action pursued against Kelly by Labor’s sore loser was upheld, voters added a further 5% to her winning margin at the resulting byelection, compounding the 12% swing she had received against him the first time around.

An equivalent provision in the Northern Territory is the basis for what will almost certainly be a successful move against the election of Yolngu leader Yingiya Mark Guyula, who won the seat of Nhulunbuy as an independent at the territory’s election on August 27.

Guyula’s infraction involved a position on the Milingimbi Community Advisory Board, for which he was paid all of $482.

Not long after Jackie Kelly’s byelection win in December 1996, a parliamentary inquiry sensibly concluded that the inflexible provisions of the constitution were doing more harm than good, and that the scope of disqualifications would be better left to parliament.

The recommendation inevitably hit a brick wall, thanks to an entrenched view that any project for substantive constitutional reform is doomed by the referendum process and the attendant opportunity for opposition mischief.

However, that may well underestimate how receptive the public would be to the argument that the only court appropriate for deciding who sits in parliament is that of public opinion.

Peter Fray

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