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The Weekend Australian - - FRONT PAGE - ROSIE LEWIS

The Turn­bull govern­ment has suf­fered an­other set­back in the du­al­ci­t­i­zen­ship cri­sis af­ter NSW Lib­eral can­di­date Hol­lie Hughes was re­ferred to the full bench of the High Court so ques­tions over her el­i­gi­bil­ity “did not be­come a fes­ter­ing sore”.

Three of four re­place­ment sen­a­tors for MPs caught in the fi­asco were elected yes­ter­day but Ms Hughes, who was set to re­place for­mer Na­tion­als deputy leader Fiona Nash, will have her case tested next week.

Ms Hughes was ap­pointed to the govern­ment-funded Ad­min­is­tra­tive Ap­peals Tri­bunal for a seven-year term in June this year, po­ten­tially putting her in breach of sec­tion 44 of the Con­sti­tu­tion.

The sec­tion states any per­son who holds an of­fice of profit un­der the crown is in­ca­pable of sit­ting in par­lia­ment.

An af­fi­davit lodged by Ms Hughes’s so­lic­i­tor, Michelle Har- pur, says her client “held no paid em­ploy­ment” at the time of her nom­i­na­tion for the 2016 elec­tion or on polling day.

Ms Harpur said Ms Hughes re­signed as a part-time member of the AAT on Oc­to­ber 27, more than a week be­fore the re­count for Ms Nash’s seat.

“The rea­son why the af­fi­davit was filed by Ms Harpur on her be­half was to be com­pletely trans­par­ent with the court as to the fac­tual is­sues to en­sure this did not be­come a fes­ter­ing sore down the track,” her lawyer, Arthur Moses SC, said.

If Ms Hughes is deemed in­el­i­gi­ble, con­sti­tu­tional lawyers and elec­toral an­a­lysts are di­vided over whether the seat would go to the can­di­date next in line on the NSW Coali­tion’s Se­nate ticket, re­tired army gen­eral Jim Molan, or whether a ca­sual va­cancy would be cre­ated.

Un­der the lat­ter sce­nario, a path could open up for Mr Nash to re-en­ter the Se­nate, though prece­dent dic­tates the seat would re­main with a Lib­eral.

“(Ms Hughes’s) prob­lem is she took up the of­fice of profit un­der the crown and she got rid of the of­fice of profit un­der the crown all within what is ar­guably the elec­tion pe­riod,” Univer­sity of Syd­ney con­sti­tu­tional law ex­pert Anne Twomey said.

While Ms Hughes’s fu­ture is un­cer­tain, the High Court de­clared Greens can­di­dates An­drew Bartlett and Jordon Steele-John, and One Na­tion can­di­date Fraser An­ning, duly elected.

The trio re­places for­mer Greens sen­a­tors Larissa Waters and Scott Lud­lam — whose New Zealand cit­i­zen­ship first trig­gered the cri­sis — and for­mer One Na­tion sen­a­tor Malcolm Roberts. Greens leader Richard Di Natale is re­fus­ing to send Mr Bartlett to the High Court to clear up his el­i­gi­bil­ity de­spite declar­ing those MPs who have “ques­tion marks” over their cit­i­zen­ship sta­tus must be re­ferred.

Con­sti­tu­tional lawyers agree there is a ques­tion mark over the va­lid­ity of Mr Bartlett’s elec­tion be­cause he was a univer­sity re­searcher at the Aus­tralian Na­tional Univer­sity when he nom­i­nated to run for par­lia­ment in 2016.

“If there are ques­tion marks raised about somebody’s sta­tus, if they have a par­ent born over­seas and unless we see doc­u­men­ta­tion to make it very clear that per­son has re­nounced their cit­i­zen­ship, then that is a re­fer­ral that should be made to the High Court,” Sen­a­tor Di Natale said.

“Should any­one de­cide to make a re­fer­ral on the ba­sis of other el­e­ments of sec­tion 44, an of­fice of profit un­der the crown, should they choose to do that, that is ob­vi­ously their pre­rog­a­tive.”

Hughes

Molan

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