Bob Day

When Senate President Stephen Parry announced yesterday afternoon that “difficult constitutional questions” had emerged with respect to Bob Day’s position in the Senate, he spoke with exquisite understatement.

The announcement came just hours after the Family First Senator for South Australia surprised all comers by resigning with immediate effect, in the latest turn in a saga that began with the collapse of his home building group a fortnight ago.

The impression given at that time was that Day’s departure was immediately imminent, but he would shortly signal an intention to linger long enough to vote on workplace relations and same-sex marriage laws, thereby forcing his party to put its process to anoint his successor on ice.

To this point, filling the vacancy had looked like a job for section 15 of the constitution, which has empowered parties to choose their own successors since a constitutional amendment passed in the wake of the 1975 crisis.

The internal party politics entailed by this were interesting enough in their own right, given that Day had used Family First as an alternative route to Parliament after two failed attempts as a Liberal.

As his recent activities have made clear, Day gets out of bed in the morning to fight union power and liberalise workplace relations laws — concerns that are, at best, indirectly related to the party’s raison d’etre of social conservatism, and which, on some views, are inimical to it.

[A dollar a Day: crowdfunding for Family First Senator]

Phillip Coorey reported in the Financial Review that a battle was looming between Day’s chief-of-staff, Rikki Lambert, who was pledged to follow Day in supporting the government on its Australian Building and Construction Commission and Registered Organisations Commission bills, and state upper house member Robert Brokenshire, a one-time Liberal MP, who nonetheless maintained a Nick Xenophon-like line that support should be conditional on concessions being offered for South Australia.

Left out of the equation was Lucy Gichuhi, a Kenyan-born lawyer who had second position behind Day on the party’s ticket at the July 2 election.

Gichuhi initially declared her interest in the vacancy but failed to find support, inviting suggestions that her earlier endorsement had been tokenistic window dressing.

However, yesterday’s succession of bombshells could very well mean that the party gets Gichuhi whether it wants her or not.

The crux of the issue invoked by Parry was that Day’s leasing of his electorate office from family business interests amounted to a pecuniary interest that disqualified him from running for election.

The government has announced it will refer the matter to the High Court when the Senate next meets on Monday, and should the court concur with its assessment, the onus will shift from section 15 of the constitution to section 44, which outlines the various categories of person disqualified from seeking election.

Where the issue has involved seats in the House of Representatives, past rulings of this kind have caused byelections to be held.

Such was the case when the prohibition on candidates holding “office for profit under the Crown” snared Liberal member Jackie Kelly in the Sydney seat of Lindsay in 1996, and independent Phil Cleary in the Melbourne seat of Wills in 1992 (though no byelection was forthcoming on the latter occasion as the parliamentary term was nearing its conclusion).

However, a Senate election is a different kettle of fish, as a voided result would affect all elected candidates from that state, and not just the one who had been disqualified.

The guiding precedent goes back to the last double dissolution election in 1987, when Robert Wood of the Nuclear Disarmament Party won a seat in New South Wales, but was later disqualified on the grounds that he was a British and not an Australian citizen.

The court on that occasion ruled that the appropriate course was to conduct a recount in which Wood was treated as being absent from the ballot paper.

Thanks to the efforts of data analyst Grahame Bowland, it’s a known known that such a course on this occasion would result in above-the-line votes for Family First flowing straight past Day to Gichuhi, electing her in his stead.

Labor has suggested that Gichuhi might also effectively be disqualified since Day’s removal would reduce the number of candidates on the Family First ticket from two to one, when only groups with multiple candidates are eligible to receive above-the-line votes.

[Keane: should Bob Day even be in the Senate?]

However, this rather pedantic line of reasoning presumably runs foul of the Robert Wood precedent, since the Nuclear Disarmament Party ticket on that occasion likewise had only two candidates.

A recount held in the wake of this year’s Senate reforms would pose a few technical challenges that did not apply in 1987, which the government’s hurriedly drafted legislation failed to account for — such as whether a below-the-line vote with the required minimum of six numbered boxes would still count as formal if one of the votes was for the disqualified candidate — but there seems little reason to doubt that such problems could and would be finessed.

As such, the voiding of Day’s election would almost certainly result in Gichuhi taking his place.

That’s assuming there aren’t problems with Gichuhi’s eligibility as well, and the fact of her having been born in Kenya — for real, in this instance — means she would have had to have gone to the effort of renouncing her citizenship of that country at some point since her emigration in 1999.

Should there be any doubt, Labor would have a powerful incentive to press the issue, regardless of the optics of seeking to block an African woman’s entry to the Senate.

As another set of Grahame Bowland’s calculations show, a count that excluded Family First altogether would deliver Day’s seat to a defeated former Labor Senator, Anne McEwen, and slightly improve Labor’s miserably low representation of 26 seats in a chamber of 76.