As many as four newly elected Liberal federal members of Parliament could be disqualified because they failed to resign their positions as local councillors. If they are disqualified, as many legal experts suspect they could be, there will be four crucial by-election across two states and the Northern Territory that could decide the government of Australia.
Russell Matheson (Liberal â€“ Macarthur), Natasha Griggs (Country Liberal â€“ Solomon), Jane Prentice (LNP â€“ Ryan) and George Christensen (LNP â€“ Herbert) were all serving local councillors at the time they nominated. All four were marginal seats, going in to the election.
The legal issue is whether being a councillor is an office of profit under the Crown, for the purposes of the Commonwealth Constitution.
There is great uncertainty over the issue. No-one knows what the correct position because the issue has not been taken to the High Court before.
In Victorian ALP circles, the prevailing view based on legal advice they have obtained some time ago, is that councillors ought play it safe and resign prior to nominating. We understand it is required of all their candidates in that position.
Itâ€™s partly because the High Court has had a reasonably tough interpretation of what might constitute an office of profit under the Crown, including teachers on unpaid leave and members of the RAAF.
All four of those Liberal Councillors were paid and served on a council that exists by reason of Territory or state law.
Legal experts explain that section 44 (iv) of the Australian Constitution bans office of profit holders from serving in the Parliament derived from English law that did the same. It was designed to stop governments from buying off MPs with lucrative â€œoffices of profitâ€ in England centuries back.
The whole provision makes a whole lot less sense now.
But it has been used to unseat the far left independent Phil Cleary and Liberal Jackie Kelly on the basis of their status as government employees at the time of their nomination.
It might also be â€“ according to those whoâ€™ve written on the topic â€“ that the position on whether local government office is an office of profit under Crown might depend on the provisions of different Local Government Acts in each jurisdiction.
On the other hand, councillors arenâ€™t appointed, donâ€™t accrue rights as employees, theyâ€™re elected so that might mean itâ€™s not the same as working for government. But they are paid, indeed many Queensland local councillors receive a large full-time salary around the same as MPs. And they can be removed or sacked by an exercise of executive power, with the Minister for Local Government usually empowered to sack whole councils or individual councillors.
With the federal government turning on a few votes, a legal challenge to as many as four Liberal MPs could leave government in limbo for months while the High Court hears the case and makes a decision.