Hollie Hughes may be ineligible to fill spot left by Fiona Nash due to her appointment to administrative appeals tribunal

This article is more than 2 years old

This article is more than 2 years old

George Brandis may have cost the would-be Liberal senator Hollie Hughes a seat in parliament.

In the latest edition of the section 44 merry-go-round that has plagued the 45th parliament, Hughes, who is next in line on the New South Wales Senate ticket to fill the position left vacant by Fiona Nash, may herself be ineligible because of her June appointment to the administrative appeals tribunal.

Brandis drew fire for the appointments, which the opposition labelled part of a “no Liberal left behind” strategy.

But questions, first raised by Stephen Murray in his blog, may point to Hughes losing her expected Senate spot for holding an office of profit under the crown.

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Hughes was expected to be named the winner in a recount of the NSW Senate, sparked by the high court ruling on Friday that found Nash to be ineligible for being a dual citizen at the time of her nomination.

Hughes, a former staffer for Bill Heffernan, was not appointed to the AAT until almost a year after the election.



But Friday’s high court ruling, involving seven MPs, found section 44 applies until the election is completed.

Combined with previous rulings by the high court, which found that a Senate election is incomplete if a candidate is later ruled ineligible, Hughes could face a section 44 challenge of her own, once she is named the seat’s successor, despite not taking the job until after the 2 July 2016 election date.

The constitutional expert Prof Anne Twomey said Hughes could face an issue given the Sykes v Cleary decision, which “held that ‘chosen’ relates to an election period starting at nomination rather than a single date”.

“This leads to terrible complications, particularly where a disqualifying event occurs and is then removed during that period,” she said.

“My own view is that it should be the return of the writs that is the relevant date – not an entire period of time. Nonetheless, the high court has not overruled its previous decision and, unless it does so, then Hughes is vulnerable to challenge if one accepts that the election period continued because the election was not completed due to the invalid election of a disqualified person.”

Another expert, Prof George Williams, agreed Hughes could face disqualification. Williams said Hughes was not the only expected incoming senator to face a potential challenge, with Andrew Bartlett, who is expected to replace the disqualified Larissa Waters, having worked for a university while nominated for the Senate.

The high court is yet to consider whether university employment is considered as receiving profit from an office under the crown.

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“The law as it stands is that these matters are assessed at the point of nomination and then on a continuing basis from that point,” Williams said. “If at any point someone triggers a disqualification, then section 44 applies.

“The only question here is whether the high court would read this sequence of events differently because the possible disqualification of Hollie Hughes arises after nomination, and before the person is aware that they may be elected on a countback.

“It is not clear what the answer would be and indeed this is shaping up to be another significant high court case. I would expect her to be referred to that court, along with Bartlett.”

Bartlett has previously addressed the issue of his potential challenge by referring to legal advice obtained by the Greens that did not see university work as an issue. Hughes did not return phone calls before publication.

Guardian Australia understands the Liberal party has sought legal advice and is “comfortable” with Hughes’s position.



If Hughes is also disqualified, the next in line on the NSW Senate voting ticket is the former general Jim Molan. But if Hughes is rendered ineligible, Molan’s seventh position on the Senate ticket could complicate matters, with the Coalition not necessarily the victor in any potential countback.