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.”