What’s going on with Bob Day?

The Family First senator has resigned from the Senate in response to the collapse of his home-building business. There is a standard procedure for replacing senators who resign mid-term, but questions have now been raised as to whether Day was eligible to be elected at the last election under section 44 of the constitution. The answer to these questions will determine who gets to fill Day’s seat.

What is section 44 of the constitution?

Section 44 governs whether a person is eligible to be elected and serve as a member of the federal parliament. On a number of previous occasions MPs and senators have lost their seats after being found to be ineligible.



Section 44 makes it unconstitutional to sit as a member of parliament if you have an allegiance to a “foreign power”, are subject to be sentenced to one year or more in prison, are an undischarged bankrupt or insolvent, hold an “office of profit under the Crown”, or have a pecuniary interest with the public service.



Why does it affect Bob Day?

While Day was in danger of losing his seat if he became bankrupt or insolvent, the issue now is whether he was ineligible to be elected at the time of the recent election due to an indirect pecuniary interest in relation to the ownership of the property where Day’s electorate office is located.

Have politicians been declared ineligible before?

The Nuclear Disarmament party’s Robert Wood lost his seat in 1988 after he was found to not be a citizen, and in 1998 One Nation’s Heather Hill also lost her seat due to her holding dual citizenship.



Explainer: Senator Bob Day's electorate office In January 2014 Family First Senator Bob Day discusses with federal Department of Finance officials establishing his electorate office in a building in Fullarton Road, Kent Town, Adelaide. Day doesn't want to use former senator Don Farrell's old office in Adelaide CBD (already leased at $99,000 pa until mid-2016). In February 2014, finance officials tell then-special minister of state Michael Ronaldson they do not recommend establishing a new office for Day. They note Day owns the building and intends to sell it on condition the office is leased to the commonwealth, and write: 'Finance has concerns about how such a transaction might be perceived.' Ronaldson tells Day in March 2014 he can move but the commonwealth won't pay his rent while the Adelaide CBD office lease is still in place. Day agrees to terms for Fullarton Road lease including rent-free period while the CBD office is empty. On 4 August 2016 Day approaches the new special minister of state Scott Ryan about rent on the office. Ryan seeks further information and discovers there may be a constitutional breach. Ryan terminates the lease on 7 October 2016 and seeks independent legal advice from constitutional law expert David Jackson. On 27 October 2016 Ryan receives legal advice regarding the possible invalid election of Day - concerns over indirect pecuniary interest because building owner owes Day money. Day says he has legal advice there is no breach because he does not have a contract or agreement with the commonwealth.



The “office of profit” rule has also kicked out a number of MPs who were elected while serving as public servants. Independent MP Phil Cleary was removed from his seat shortly before the 1993 election as he was a teacher on unpaid leave at the time of his election. Liberal MP Jackie Kelly lost her seat shortly after the 1996 election due to her being an employee of the Royal Australian Air Force (RAAF) and holding New Zealand citizenship. Both members went on to win re-election after being ruled ineligible. Liberal senator Jeannie Ferris resigned and was reappointed in 1996 after questions were raised about her employment in the office of another senator at the time of her election.



After a rush of cases in the 1990s, no further members of parliament have faced challenges under section 44.



Why does it matter if Day is ineligible if he’s leaving anyway?

It matters because the seat will be filled in different ways depending on whether Day, a South Australia senator, was eligible.

If Day was eligible to take his seat, and then resigns, the seat will be filled according to the standard process. Day’s Family First party will nominate a successor, and a joint sitting of the South Australian state parliament will approve that person.

If the high court finds that Day was not eligible to take his seat in the first place, it seems likely that the seat will instead be decided by a recount of the Senate ballots from the election. When the high court found Robert Wood and Heather Hill ineligible to be elected in 1988 and 1998 respectively, a recount was conducted to fill their seats. In both cases, the seat went to the second candidate on their party’s ticket.

So who is most likely to win the seat now?

If there is a recount, it is most likely that Family First will hold on to the Senate seat, but they won’t have any choice over who will take the seat – the winner would be Day’s running mate Lucy Gichuhi, a Kenyan-born lawyer.

Grahame Bowland, a political analyst, has taken the raw voting data from the 2016 election and run the count with Bob Day excluded, and found that Gichuhi wins the seat.

The ABC elections analyst Antony Green has questioned whether Gichuhi is eligible to receive most of Day’s votes. Parties are required to have two candidates in a group to receive above-the-line preferences and the Family First group only has one when Bob Day is excluded. If Family First’s above-the-line votes are distributed to the next party on the preference order, Labor would win the seat in a close race with One Nation.



It seems unlikely that Family First will miss out on the seat due to this technicality. A similar issue arose in 1988, when the Nuclear Disarmament party group was reduced to one candidate, and the high court ruled that the second candidate could still receive above-the-line preferences. While the law is slightly different now, this precedent would be strong.

If Day is not ruled out and Family First get to choose the candidate instead of there being a recount, it is very unlikely to opt for Gichuhi, with the frontrunners being Day’s chief of staff, Rikki Lambert, and the Family First state MP Robert Brokenshire.

What happens now?

Day has been one of the most pro-government members of the Senate crossbench and there’s no guarantee his successor will have the same approach; the government may find its task of passing legislation more difficult.

Regardless of the result, the court hearing will delay the filling of Day’s seat, leaving the Coalition without a crucial vote for at least a few more weeks.

