Kerryn Phelps delivers her victory speech. AAP Image/Chris Pavlich.

After a dramatic byelection in Wentworth on the weekend, independent Kerryn Phelps finally looks on track to wrestle Malcolm Turnbull’s old seat from the Liberal Party. But Phelps’ path to Canberra faces another hurdle beyond her opponent Dave Sharma’s late surge in postal votes.

As with many MPs over the last year, there are questions over Phelps’ eligibility for Parliament under section 44 of the Constitution. Specifically, because of her work as a general practitioner, and position on the City of Sydney Council, Phelps may hold an “office of profit” under the Crown, rendering her ineligible.

The case against Phelps

Barring those holding an office of profit means that anyone who receives payments or other financial benefits from the government is ineligible to sit in parliament. Generally, the section prohibits a current member of the public service from sitting. The High Court previously explained the rationale of the section was to maintain a politically neutral public service.

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There are two potential bases for Phelps’ potential ineligibility. As a practicing GP, Phelps receives medicare rebates from the government. If the High Court were to interpret this rebate as an office of profit, akin to a public servant’s salary, she would likely be ineligible.

Secondly, Phelps’ position on the City of Sydney Council also raises constitutional red flags, although whether or not she is eligible depends on how her payment is made.

Phelps intends to stay on at the City of Sydney Council and has not confirmed whether she will leave her medical practice.

Last week, Phelps said she obtained legal advice from prominent Sydney barristers Geoffrey Kennett — who acted in the “Citizenship Seven” case — and Perry Herzfeld, putting her in the clear. Since Phelps has not released the advice publicly, we have no way of knowing if it is definitive. Notably, after similar reports began to circle about Home Affairs Minister Peter Dutton’s eligibility in August, legal advice provided to Labor and the Liberals seemed to reach contradictory conclusions.

How might the courts treat Phelps’ eligibility?

In 1992, independent Phil Cleary (who, like Phelps, won his seat following the resignation of another former prime minister, Bob Hawke) was found ineligible by the High Court because he received payments from the Crown as a teacher.

Of potentially greater use is last year’s case concerning Steve Martin, the Devonport Mayor who replaced Jacqui Lambie in the Senate. Lawyers for One Nation candidate Kate McCulloch argued Martin had a direct and indirect relationship with the executive by virtue of his mayoral position, rendering him ineligible. But the High Court unanimously accepted Martin’s argument that his position was independent of the Crown.

Last week, Darrin Barnett, a media advisor for Phelps said the Martin decision meant her position as a councillor did not jeopardise her eligibility. But according to Professor Anne Twomey, a constitutional law expert at the University of Sydney, we would need to carefully compare the Sydney and Tasmanian legislation before making a conclusion on Phelps’ eligibility.

Whether the rebate amounts to an office of profit is murkier. According to Barnett, the rebate is for the cost of service, and “not a payment to the doctor”. But the High Court has never dealt with such a section 44 issue arising out of such a factual scenario, so whether this renders Phelps ineligible is unclear.

Nevertheless, like last year’s citizenship fiasco, the doubts around Phelps eligibility highlight the problems with section 44. Concerns about section 44 go back decades. A parliamentary report from 1997 called the subsection “a minefield” which placed unfair burdens on public servants running for parliament, and had the potential to cause significant instability to the political system. The framers of the Constitution did not necessarily foresee the expansion of Australia’s public sector, and how schemes like Medicare might ultimately run afoul of the section. The only way around section 44, however, is via a referendum. 

Will it amount to anything?

Of course, these doubts around Phelps’ eligibility could all be for naught. For her eligibility to be assessed, Phelps would need to be referred to the High Court by a majority vote in the House of Representatives. Similar questions linger over Home Affairs Minister Peter Dutton, but the Coalition has refused to refer him, meaning his eligibility may never be resolved.

Since Phelps’ expected victory will rob the government of their parliamentary majority, a referral to the High Court is unlikely. But even if Phelps is found ineligible and forced to vacate her seat, the result would be another byelection in Wentworth, which after Saturday’s drubbing, is probably the last thing the Liberals want.