What has already been a difficult year for the Greens suddenly got a lot worse on Friday, with the shock resignation of one of the party’s most popular and effective parliamentary performers.
When Scott Ludlam announced he had learned of his ineligibility to hold his Western Australia Senate seat by virtue of New Zealand dual citizenship, he became the third senator in a year to fall foul of section 44 of the constitution, which encompasses expansive grounds for disqualification that have been complained about here previously.
The Ludlam case is particularly egregious, as it would never have been foreseen when the section was drafted in the late 19th century, when Britons, Australians and New Zealanders alike shared the status of British subjects.
Australian citizenship would not come into existence until shortly after World War II, and British subject status continued to exist alongside it until the Hawke government removed it in 1984, followed two years later by the severance of all legal apron strings short of establishing a republic.
When the High Court caught up with these developments in two separate rulings in the 1990s, it first established that prospective parliamentarians had to take “all reasonable steps” to relinquish alien citizenships, then ruled that the United Kingdom constituted a foreign power for this purpose.
All of which leaves little room for doubt that a New Zealand citizenship that never made the slightest difference to Ludlam’s life or anyone else’s made him ineligible for a Senate seat he held for nine years.
This is not to let Ludlam off the hook for what seems an astonishingly sloppy oversight, coming as it does from a parliamentarian renowned for being on top of his brief.
It also presents a party struggling to hold itself together with the new difficulty of integrating a successor who will, at least initially, have none of Ludlam’s electoral pull.
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The public position of all with an interest in the matter is that it’s too early to speculate how things will play out, given the legal uncertainties involved.
However, there seems little doubt that the Senate will shortly refer the matter to the courts, which will promptly rule that Ludlam’s election last July was invalid.
Following the Bob Day (Family First) and Rod Culleton (One Nation) precedents, there will then be an order for the Senate vote count to be conducted again with Ludlam (not to mention Culleton) excluded from consideration — the undoubted result of which will be that the second and third candidates on the Greens ticket will be elected, rather than the first and second.
As occurred with Lucy Gichuhi and Peter Georgiou, who respectively took places won by Family First and One Nation, this has thrust a hitherto obscure low-order candidate into the spotlight: Jordon Steele-John, a 22-year-old disability advocate with cerebral palsy.
However, Steele-John took to Facebook on Friday to announce that he would be “happier putting the choice of candidate back into the hands of our party membership”.
If Steele-John indeed declines the opportunity likely to be handed him, the result will be a Senate vacancy of the more familiar kind, to be filled by an appointee of the party and ratified by the state parliament.
ABC election analyst Antony Green points out there would be nothing stopping Ludlam filling his own vacancy if he sorted out his citizenship issues in the meantime, but Ludlam has insisted that “it’s time for somebody else to have a go”.
The matter will thus be determined by a secret ballot of Greens members — of its nature, an unpredictable process.
Reports on the weekend mentioned party convenor Christine Cunningham as a likely starter, and the wording of Steele-John’s announcement suggests he may be up for the job if he can win it fair and square.
The party’s state parliamentary contingent includes two with substantial experience (Robin Chapple and Alison Xamon), two recent arrivals (Tim Clifford and Diane Evers), and former members who might be looking to reactivate their careers (notably Lynn MacLaren, who narrowly failed to win re-election in March).
However, party insiders say it will be hard to look past Kate Davis, a solicitor for a tenants’ rights organisation who ran last year in the federal seat of Fremantle.
Once the matter is decided, the Senate will face the novel question of whether to revisit last year’s determination as to which Senators should serve six-year, and which three-year, terms, which only arises after double dissolutions.
It was then decided to give a long term to Ludlam and a short term to his Greens WA colleague Rachel Siewert based on the order of their election in the Senate count.
A case could equally be made that Siewert should be promoted to the longer term by virtue of winning the higher position on the recount, or that Ludlam’s anointed successor should simply serve out his term, as would normally be the case with a casual vacancy.
In the former event, the newcomer will have less than two years to get established in the minds of voters ahead of a bid for re-election in a seat that is always a touch-and-go proposition.