LIMBO NATION: Four newly elected Lib MPs could be disqualified

limbo 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 – Macarthur), Natasha Griggs (Country Liberal – Solomon), Jane Prentice (LNP – Ryan) and George Christensen (LNP – 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.

It’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 “offices of profit” 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 – according to those who’ve written on the topic – 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 aren’t appointed, don’t accrue rights as employees, they’re elected so that might mean it’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.

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59 Comments

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59 responses to “LIMBO NATION: Four newly elected Lib MPs could be disqualified

  1. Noel Jackson

    I’m afraid the Phil Cleary case was pretty clear.

    No reason to deviate from that.

    I’m not justifying the law, but the law remains in place.

    In other words, it’s ‘Game on’!

  2. I recall Green Senate Candidate and former Melbourne City Councillor David Risstrom had to resign from the City Council back in 2004 in order to nominate for the Senate. David’s advice was that he could not retain his Council position and be a candidate seeking election the Australian Federal Parliament.

  3. Frank's Retravision

    I bet my leftie that nothing comes of this. Nice try though.

  4. Mr Blab

    As an ardent Labor supporter I still can’t find any joy in thinking that the government of Australia may be decided by a group of lawyers.

  5. Anonymous

    Stephen Mayne from Manningham Council did not resign and ran for the Senate.

  6. Sad

    the ALP must be desperate to try this trick.

  7. ActNow

    This is one for GetUp. Will they act on the principle or will they compromise the integrity of the system to bring about a political outcome?

  8. Michael

    Yes, because we all remember how well taking the point in relation to Phil Cleary and Jackie Kelly went for the ALP – each of them got back in with thumping majorities. Cue slow hand clap. Taking up the issue (assuming it’s valid) and forcing by-elections would have to be about the most stupid thing the ALP’s done in this election – which is saying something.

  9. Solomon Grundy

    don’t the LNP/CLP have a similar, precautionary policy to the Vic ALP? It is at least arguable (in my view highly likely) that local gov is an office of profit under the crown. Why on earth would these people not resign before the election? Natasha Griggs is also a high level NT public servant- did she at least resign from that position? Amateur hour.

  10. Confused

    So-called ‘Independent’ Moreland Councillor John Kavanagh ran for the DLP and did not resign either…

  11. Dual Citizen

    The same section of the Constitution (s.44) disqualifies holders of dual or plural citizenship to stand for federal parliament. This was made very clear to me when I became an Australian citizen. Why is it then that at least one MP and cabinet minister apparently holds dual citizenship?

  12. Anonymous

    This is getting worse than Florida 2000 !

  13. something surreal ….. Australian political future decided by a group of lawyers ….. now where have i seen that !!!!

  14. Bilko

    what about the under age member for Longman and has he tick all the boxes for preselection etc

  15. The Truth

    To Dual Citizen – there is no mention of citizen in the constitution, only subjects.

    Citizens are a creation of Roman law and foreign to the Australian constitution. The matter is in relation to foreign powers and I believe a precedent was set in the 80’s over dual citizenship. However, it could be argued that members of political parties are in fact serving foreign powers!

  16. Adrian Jackson

    I think John Thwaites was a South Melbourne councillor when elected to Albert Park electorate. In Victoria you can serve as a councillor and MP at the same time I think. Perhaps that is only the State Parliament? Who knows the answer.

    Councillors are elected not employed public servants (office of profit under the crown) even though they get a small gratuity now (they used to do it for free).

    Wasn’t the issue with Jackie Kelly that she was a Kiwi serving in the ADF as a lawyer and not an Aussie at the time of nomination or she did not take LWOP from the RAAF?

  17. Piv

    What about Clover Moore in NSW?
    Lord Mayor of Sydney and State MP for Sydney.

  18. Skizziks

    And is Anthony Carbines the wanna be MP for Ivanhoe still on the Banyule Council as his contact e-mail suggests?

  19. Anonymous

    Anthony Carbines is a Banyule Councillor and is running for the ALP in the now disgraced Ivanhoe MP Craig Langdon’s electorate.

  20. VEXNEWS

    Yes but it’s safe to assume Carbines would resign his council position before contesting the seat for the reasons set out above.

  21. VEXNEWS

    Clover Moore is not a federal member of Parliament, of course.

    The other candidates listed as being federal candidates who ran in the recent election were all taking the same risk as set out in the article.

  22. Fill Kleary

    Oh great me’s names in print again, please keep chatting & blogging about me and how famous I once was Mr Landeryou, as there is no such thing as bad publicity. I’ll get on the blower to let Sir Les know too.

  23. Coucnillors not disqualified for State Parliament

    The rule only applies to Federal Parliament- many State MPs were councillors when elected!

  24. Madam Lash

    Same thing applies in Moonee Valley… Guilliano and Iser have both announced they are running in the state election

  25. Berwick Boy

    Don’t forget the most dysfunctional council in Victoria…Casey City Council, who’s Mayor Lorraine Wreford is the Liberal candidate for Mordialloc and former Mayor (albeit he was only actually in the role for 7 of the 12 months) is the Liberal candidate for Cranbourne. It should be a straight forward ruling. If a Councillor is “ENDORSED” (not just nominates ) for a political party in either a State of Federal election they must resign. It is totally emoral that Casey Mayor Lorraine Wreford accepts $75,000 (rate payers money) for the position of Mayor onl to spend a large proportion of her year campaining in a far removed state seat of Mordialloc, and Ablett, who is only a first term Councillor who obviously uesed the Council as a clear stepping stone to get in state politics at the detriment of his local community.

  26. Joe

    In qld labor changed it so you couldn’t run for state as a councillor. They did this just to stop the Nats getting good talent from local councils. They would rather have their totally inexperienced and clueless union hacks in instead.

  27. Anonymous

    What is a State MP resigns and 2 years later runs for local council? What then?!? Thinking of you Ivanhoe.

  28. Sir Les Twentysomething

    Got your message Fill. Isn’t it wonderfull to see your name in print? Are you still writing up glowing articles in your paper about that fellow Mick who had his ex put restaining orders on Him because of his poor form towards the ladies. Last time I saw him he was waving a shirt and yelling at our PM.
    Bets we keep that to ourself hay Fill seeing your seena sa bit of a hero in that area.

  29. Skizziks

    VexNews @ 12.11.
    Thanks for the heads up-I’ll try and pay more attention!
    Casting aside all the vitriol re the departing MP, I think it shows from Saturday and talking to my associates and neighbours out here in Ivanhoe, people have had a hearty gutsful of having ‘jobs for the boys’ candidates foisted on them by any party.
    I am not sure whether it has sunk in yet.
    If the current State mob continue to treat the hoi polloi with the arrogance they have shown in recent times they might get a big suprise in this seat.

  30. Mikey

    Leave my Lorraine alone…..she is simply the best Councillor I have ever had control over !!

  31. Anonymous

    So will Consumer Affairs Victoria finally get off their incompetent asses and investigate the now former Member for Ivanhoe for his pilfering of money from the Bell St Mall Traders Incorporated or will this continue to be hushed up by those in power at 1 Treasury Place ???

  32. BS Detector

    In NSW, there is a similar “office of profit under the Crown” provision for State MPs.

    The fact that nobody has challenged Clover Moore makes me think that you’re barking up the wrong tree on this one.

    Acadmic Anne Twomey looked at this issue in he brilliant annotated guide to the NSW constitution. She agreed that it was a interesting proposition, but ultimately came down on the side that they probably were not an “office of profit under the Crown”.

    Kelly was booted due to the historical anachronism that there was no ‘Air Force’, in 1900, and hence it wasn’t included in the Constitution when written, not on any new substantive legal point.

    Cleary’s case is very interesting, and you could take out of it bits and pieces to support both the pro and anti sides of the argument.

    However, I agree with Twomey:

    1. Councillors receive nominal allowances which could not be considered offices of profit;
    2. Their elected nature means that they are not ‘offices’ in the traditional sense;
    3. There is a specific prohibition on elected State officials serving in the Federal parliament, but no replicated provision for local government – which actually would mesh nicely with the Court’s reasoning in Kelly v Free (1996).

    Still, I wouldn’t put it past somebody like GetUp to test the proposition finally.

  33. Let it go. I guarantee you that if anyone successfully challenged their candidacy, they would win the ensuing by-election with a much greater majority, voters would be pissed off at being sent back to the polls based on a technicality.

  34. Kevin V Russell

    Is that Anthony Carbines related Elaine Carbines the same MLC who was dumped by the right wing factional hacks of the Geelong ALP? I recall they tried to get rid of Ian Trezise without too much success.

  35. Anonymous

    Adrian Jackson | August 26, 2010, 9:01
    That was changed at the same time that Councillors could not be electorate officers or advisors.

    Councillor if wins State seat must resign from Council within 7 days.

  36. Anonymous

    Anonymous | August 26, 2010, 15:26

    He will have 26 candidates against him, all from the ALP.

  37. Anonymous

    So called Blacktown Council “Independent” Allan Green (who is an Lib Councillor” ran for the CDP in Greenway

  38. Age of Reason

    Ben Chifley was a member of Abercrombie Shire Council the whole time he was an MP, including when he was PM. Has the Constitution changed since then?

  39. Jake the Snake

    What happened to Craiggy?

  40. Anonymous

    langdon got garotti to write his resignation letter and neither of them could get the spelling right – good riddance

  41. Discriminatory

    To Dual Citizen, there is a discriminatory practice where if you hold dual citizenship with another country that will not let you relinquish it, then you can still run for parliament. You just need to show you took every available path to renounce the old.

    This means that if (as with Heather Hill) you are a British Citizen (with the same Queen, culture and legal roots) you can’t run but if you are from a less enlightened country who wont let you go then you can.

    Makes sense…not.

  42. kwv

    Joe | August 26, 2010, 14:04 when you find good talent from the Nats let us all know, now that is a good boy.

  43. A Lawyer

    To The Truth – I think you will find that s 44(i) of the Constitution does refer to citizens as follows:

    44. Any person who–
    (i) Is under any acknowledgment of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power

    shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.

  44. Bill

    LMAO, ROFL, poor Jane I wonder what she will do if she gets booted. I know I will be LMAO, ROFL for many days myself.

  45. To A Lawyer –

    You are correct, though the reference is to ‘foreign citizens’. The point I was making is there is no concept of ‘Australian citizens’ in the constitution, only Auistralian subjects.

    Hence, any citizen, dual or otherwise, is foreign. We as Australians are subjects, not citizens under the constitution. The distinction is between the two is important.

  46. Blind Freddie

    Councillors get superannuation I understand so this situation may constitute an “office of profit”

  47. Anonymous

    If a councillor could be shown to have spent more money than was earned, could he or she be said to have taken a “profit” from public office.

    If lawyers get involved in this absurdity, why should accountants miss out on the fun?

  48. Adrian Jackson

    Well the AEC has confirmed all MP’s elected to all 150 House of Representatives seats today. End of story. No seats are in doubt now.

  49. Andrew Landeryou and the VEXNEWS Orchestra

    Adrian, as you know, it’s not the AEC that deals with the disqualification issue, it could be the Court of Disputed Returns (the High Court) that resolves the issue of the four councillors. I doubt the ALP would bring the proceedings but it will be interesting to see who else could.

    The ALP has threatened to challenge Boothby over an integrity of the count issue but that didn’t sound as likely to succeed as the office of profit argument.

    I suspect, at least in the current climate, that above commenters have been right that the ALP wouldn’t necessarily pick up any of those seats, although VEXNEWS heard many concerns from Libs in Ryan about the surging Greens party vote there so maybe they’d be half a chance in the University based seat in inner-city Brisbane.

  50. Adrian Jackson

    Nothing will come of any application to the court of disputed returns in my opinion and even if it does remember Jackie Kelly was elected in the second election which will happen in these cases too.

    Few voters will change their vote in a few months time and some may prefer to change their vote and vote for the candidate because they have been stuffed around by red tape.

  51. Andrew Landeryou and the VEXNEWS Orchestra

    I suspect being a paid local government councillor is an office of profit under the Crown.

    Certainly, that’s the current legal advice received by Victorian Labor.

    Who knows if their lawyers are right or indeed whether it’s the same position in other states or the NT.

    Our reading on this issue shows that – at best – the case against it being an office of profit is uncertain.

    As for the politics, we agree. The last thing ppl want is elections.

    We live in uncertain times though and I think those who dismiss the chance of this going to court are saying the exact kinds of things that Phil Cleary’s mad supporters said before the Court disqualified him.

  52. Madam Lash

    The thing about the 4 seats in question is that they were all under 2% margins prior to the election…and yes they are unlikely to go to Labor….but if rules have been broken surely it needs to be addressed…

  53. ActrNow

    Councillors receive a taxable income/allowance. The Council issues group certificates and the allowance is taxable. They are by all intensive purposes in receipt of [profit from the crown. Councils in Victoria are creatures of the State Government. There is sufficient legal precedents. The best option would be for Get UP to challenge the election of such members of parliament and seek a ruling from the high court.

    BUT WILL GetUp ACT TO PROTECT THE CONTITUTION? I THINK NOT

  54. Anonymous

    So long as the ALP “legal” opinion is more accurate than that received by Ben ‘criminal’ Fordham.

  55. Don't be silly!

    This is wrong. Local Government (elected Councillors) is and has been a great training ground for future State and Federal MPs – both Party alligned and independents.
    In many cases the elected councillor may not win the vote yet if they have to resign when they nominate for State or Federal the community has lost the services of it’s experienced elected councillor and a costly by-election would have to be paid. A councillor by nominating for State or Federal is basically applying for a promotion to serve the community on a full time, higher level. It is my understanding that a councillor could nominate and IF THEY WON they had to resign their council position within 7 days which makes PERFECT SENSE. Why lose them from council and incurr by-election costs if they don’t win the seat? As for using council paid time to campaign, most councillors have full time employment to keep a roof over their heads as their council payment is far from enough for that and would ni doubt take leave from their full time employment to run for higher office so their council work would not be effected. They hardly want bad press on them not doing their current elected job properly. If that Lorraine someone who is mentioned in previous posts is doing the wrong thing then I suggest her Council CEO pull her in to gear or ratepayers go to a council meetring and bring it up in question time. The papers will cover that and also rate payers, start writing to papers in the area she is running for to let them know. She won’t want that, neither will the party she is representing. Please, don’t go down this line of trying to get candidates disqualified because they are sitting councillors. It will end up backfiring in so many ways.

  56. Anonymous

    Wot happened to the one election wonder Walpole. Dumped.

  57. yl admirer

    take a ‘sneak peak’ at the super sexy young liberal cuties. my favourite ben blackburn, super hot and openly gay. dominic kelly. the delicious morgan forrest. sexy simon fontana. mmmmmmmm i want these boys all to myself

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