Section 44 could have serioues consequences for democracy this election

The likely presence of ineligible candidates in the federal election — and the inability of the Electoral Commission to do anything about it — poses a significant threat to the legitimacy of Australian democracy.

As became clear early in the campaign when the Victorian Liberals lost three candidates in safe Labor seats to section 44 concerns, the High Court’s strict interpretation of the citizenship requirement, and the ongoing lack of clarity around what constitutes an “office of profit under the Crown”, are still proving difficult to address even for the major parties. This is despite new regulations providing a qualification checklist for candidates to fill out and, where necessary, provide documentation to support.

The citizenship saga of the previous parliament exposed how lax all parties were in their vetting of candidates, including Labor, which had collectively sworn blind its internal processes for checking candidate eligibility were perfect, before losing five MPs and senators. The High Court’s standards are so strict that laborious efforts are now required to ensure a candidate with foreign ancestry is eligible — as the Greens’ Canberra candidate Tim Hollo has demonstrated.

Laborious means resources, time and effort — taxing even for established political parties with administrative infrastructure. For minor political parties, or sham parties like Clive Palmer’s outfit, it will likely prove expensive indeed — sufficient that UAP appears to have not bothered trying, in some cases, even to find candidates who at least live where they’re standing. Perhaps Clive can hire some backpackers to stand in some difficult seats.

More problematic is that the requirement that candidates not be an undischarged bankrupt is being treated as self-assessed by some candidates. Former One Nation senator Rod Culleton has nominated for the Senate and is an undischarged bankrupt, in violation of section 44. A Senate candidate for Oswald Mosley’s hastily cobbled together far-right party is also bankrupt, but declares she doesn’t think she is and so can stand.

This has exposed a significant flaw in the regulatory powers of the Australian Electoral Commission. It can’t refuse to accept the nomination of someone even when it is aware they have blatantly lied about their eligibility. Culleton and Mosley’s candidate will both appear on their respective ballot papers. All the AEC can do is refer them to the Federal Police for a false declaration. That’s what the AEC has done with Culleton, announcing:

… the AEC has referred Mr Culleton’s candidate Nomination Form to the Australian Federal Police (AFP) to examine if a false declaration has been made under provisions of the Criminal Code Act 1995, relating to his status as an undischarged bankrupt and the prima facie disqualification of such persons to be chosen or to sit as a Senator or Member of the House of Representatives under section 44(iii) of the Constitution.

The AEC can only reject a nomination if the candidate’s paperwork has been filled out incorrectly — as the commission pointed out regarding Culleton:

… the provisions of the Electoral Act do not [their emphasis] give the AEC or any AEC officer the power to reject a fully completed candidate nomination for the Senate or the House of Representatives, regardless of whether any answer to a question of the qualification checklist is incorrect, false or inadequate.

None of these candidates look likely to be elected. Mosley’s own defiling of public life with his presence will end shortly. But to the extent they attract votes in seats where, by law, they are not permitted to stand skews results. This is especially problematic for the Palmer candidates. In published polls, UAP is attracting between 2.5% and 4%, and likely more in regional Queensland seats. Preferences from UAP candidates who may be ineligible to stand may thus be decisive in some seats.

This issue worried the Joint Committee on Electoral Affairs when it considered the citizenship debacle. “Can a political party manipulate an election by deliberately nominating an ineligible candidate and then contesting the successful candidate on the basis of preferences? Could a foreign government support a candidate to do the same?” This was a “significant, but previously unexamined” issue, it found, which “has the serious potential to affect the overall result after the election has concluded, at any point during the term of Parliament” given that the opinions of eminent lawyers differed over the impact of an excluded candidate’s preferences.

The government, however, takes a sanguine view of the situation and thinks the preferences of excluded candidates aren’t an issue. And the committee itself rejected the idea that the AEC be given the power to vet and eliminate candidates found to be ineligible, saying it would “expose the AEC to accusations of bias”.

Legally, the impact of excluded candidate preferences may be unclear, but in terms of Australia’s democracy, it is very much an issue. In a tight election — and two of the last three elections have led to minority governments — the preferences of candidates excluded as a result of blatant neglect of or contempt for the requirements of section 44 (let alone deliberate sabotage) could affect the outcome of contests in individual seats and, therefore, who governs the country. And the body charged with running our elections can’t do anything about it.