Within hours of Family First’s Bob Day submitting his Senate resignation on Tuesday, the government announced it would move for the High Court to rule on whether he had been ineligible to sit in the upper house.
The development throws uncertainty over the Senate’s future crossbench composition and the timing of the arrival of a new senator.
The government is also considering its tactics on its industrial relations legislation, due to be considered by the Senate next week. Day, who was the government’s strongest crossbench supporter, had indicated last Friday that he planned to remain in the Senate at least long enough to vote on that and the marriage plebiscite legislation.
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The constitutional issue is whether Day had an indirect pecuniary interest in a contract with the Commonwealth for the lease of his electoral office, which would make him ineligible to sit under section 44.
If Day’s election as the twelfth senator from South Australia was invalid it means he is not replaced by a candidate nominated by Family First, the system for a valid casual vacancy.
ABC electoral analyst Antony Green said in those circumstances there would be a recount.
Green said that if the court went by the rules used in the 1998 case of One Nation’s Heather Hill, the second Family First candidate would be elected.
But because there had been only two Family First candidates, this would raise the question of whether, if Day was ineligible, the party should have had an above-the-line box. If it were decided it should not, then those Family First votes would be distributed according to the second preferences on them for other parties above the line, Green said. He said that would advantage Labor and One Nation.
Attorney-General George Brandis and Special Minister of State Scott Ryan said in a statement that on Friday Ryan had written to Senate President Stephen Parry “providing certain information” about the potential breach of the constitution. He also wrote to Day.
The ministers said that when the Senate reconvenes on Monday the government will initiate the referral to the High Court. The High Court sits as the Court of Disputed Returns, and deals with issues of the constitutional qualifications of parliamentarians.
Earlier, announcing he had resigned, Day made no mention of the constitutional problem. He said that the investor who had been interested in his collapsed housing business had decided not to proceed. On Friday he had held out the prospect of perhaps continuing as a senator if the deal went ahead. This was after he had on October 17 announced he would quit the parliament.
“It has been an honour and a privilege to serve as a senator for South Australia and I am sorry it has ended this way,” Day said. “I will now devote my time and energy to assisting those who have been affected by the company’s closure.”
Family First said in a statement that it had on Tuesday been made aware of the allegations. “Family First has had no prior knowledge of these allegations and Mr Day has denied that any pecuniary interest exists or had existed.” The party said it was seeking legal advice.
Parry on Tuesday afternoon emailed all senators saying that he had notified the South Australian governor of the Senate vacancy.
But he had said it was not yet possible to advise him whether the vacancy was one to which section 15 of the constitution applied. This provides for a state parliament to ratify a replacement from the same party.
This approval had been expected to be finalised in time for the new senator to be in place for the sitting starting November 21. A tough fight has been underway between Day’s former chief of staff Rikki Lambert and a Family First member of the SA upper house Robert Brokenshire for the nomination.
Labor leader in the Senate Penny Wong said that if Day had not been validly elected his resignation would not create a casual vacancy. “Precedent suggests the appropriate method for replacing Mr Day in the Senate would therefore be through a recount of the SA Senate vote rather than through the SA parliament appointing a replacement.”
She instanced when this happened after the Nuclear Disarmament Party’s Robert Wood was found not to have been validly elected at the 1987 poll.
Wong said the opposition would take its own legal advice “on the complex issues involved in this situation”.
“We will take a principled approach by seeking to ensure that the situation is resolved in accordance with the constitution and electoral laws, that the outcome reflects the democratic will of SA voters and that the matter is dealt with transparently and openly.”
The original version of this story had a typo referring to the 1987 election as 1967. This story has also been corrected to accurately reflect the pecuniary interest issue.