In this story

When former senator turned government-appointed special envoy Russell Trood attended a diplomatic function in the Lithuanian capital, Vilnius, in 2012, there was some hierarchical confusion.

In June of the previous year, the then foreign minister, Kevin Rudd, had appointed the former Queensland Liberal senator and now Griffith University international relations professor to lobby support for Australia to secure a temporary seat on the United Nations Security Council.

When it came to who would speak first, Trood deferred to Australia’s ambassador to Sweden, who had accompanied him to Vilnius, assuming the diplomat who was also accredited to the Baltic states was his superior.

“You rank above me,” the ambassador corrected him, quietly.

“The deeper purpose – where there should be debate – is whether it’s wise to appoint someone who is an MP.”

Under international law, special envoys are perched somewhere between ambassador and minister on the diplomatic ladder.

But with the recent appointment of two new special envoys – MPs Philip Ruddock for human rights and Andrew Robb for trade – there are questions about status of a different sort. The confusion is less about rank than role, job description and constitutionality.

Ruddock and Robb are believed to be the first special envoys to begin work while they are still in parliament.

And that has raised questions about whether their appointments could be constitutionally compromised.

“This potentially raises serious constitutional problems,” shadow attorney-general Mark Dreyfus told The Saturday Paper. “The government should explain every last detail of these highly unusual arrangements.”

1 . ‘Office of profit’

Dreyfus, a Queen’s counsel, believes the two appointments could potentially be found in breach of section 44 of the constitution, which renders anyone seeking to claim a seat in parliament ineligible if he or she holds a separate “office of profit under the Crown”.

Section 44 sets out who cannot sit in parliament, including anyone who holds allegiance to a foreign power – that is, foreign citizenship – has been convicted of treason or an offence punishable by a year or more in jail, or is bankrupt or insolvent. It also rules out anyone who holds any other “office of profit under the Crown”, receives any government pension, or has “any direct or pecuniary interest” in any contract with the Commonwealth Public Service.

Foreign Minister Julie Bishop told The Saturday Paper that Ruddock’s appointment was in line with the longstanding practice of successive Australian governments to appoint special envoys to support international engagement.

“Mr Ruddock’s appointment was consistent with this, involving consultation with the prime minister and seeking legal advice,” Bishop said.

On February 8, Bishop announced that parliament’s longest-serving MP would become Australia’s special envoy for human rights focusing on “advancing Australia’s human rights priorities of good governance, freedom of expression, gender equality, the rights of indigenous peoples, and national human rights institutions”.

In a statement she said Ruddock would “actively promote” Australia’s candidacy for membership of the Human Rights Council for the 2018-20 term. “He will represent Australia at international human rights events and advocate our HRC candidacy in selected countries.”

In senate budget estimates committee hearings three days later, Labor senator Anne McEwen asked Department of Foreign Affairs secretary Peter Varghese and Attorney-General George Brandis, QC, whether Ruddock’s job could be deemed an “office of profit”.

“Are you confident that that arrangement for payment does not disqualify him under section 44 of the constitution, with regard to occupying an office of profit under the Crown?”

Brandis suggested no advice had been sought through his office before the appointment was made.

“I am not sure that there are potential section 44 issues,” Brandis responded. “I have not had a conversation to that effect with the foreign minister … I am quite certain the appropriate arrangements to ensure that there is no section 44 issue will be made.”

The detail of those arrangements was not clear. He offered to check. But when he was told Ruddock was not being paid a salary, he firmed his view that there wasn’t a problem. “And so,” he said, “the issue does not arise.”

Neither Ruddock nor Robb – whose job had not been announced when Senator McEwen asked her questions – are being paid for their new jobs.

Some constitutional experts believe that’s enough to clear them of the section 44 hurdle.

“The issue with Mr Ruddock is that he’s not getting any payment,” said electoral law specialist Professor Graeme Orr, of the University of Queensland.

He said it would be more problematic if there was some promise to furnish him with back pay after he left parliament – something that has not been suggested.

But others are not so certain the appointments are conflict free.

“The issue is not whether the envoy is being paid, but rather whether the office is one which entitles the holder to claim payment, whether now or in the future,” said constitutional law expert Professor Anne Twomey, of Sydney University.

“It does not matter that a person declines to claim any payment while a member of parliament. As long as the right to payment attaches to the office, that is enough to make it an ‘office of profit’ and to cause the person to be disqualified.”

2 . Eligibility challenges

Two of the most recent High Court cases involving section 44 challenges to MPs’ eligibility related to parliamentarians having failed to formally relinquish government positions that were unpaid – the 1992 case of Victorian independent MP Phil Cleary as a teacher on leave, and the 1996 case of NSW Liberal MP Jackie Kelly as a Royal Australian Air Force reservist.

In both cases, the court found they were holding offices of profit and they had to resign their parliamentary positions and face byelections for their seats, which both subsequently won.

In 1974, when then prime minister Gough Whitlam appointed Democratic Labor Party senator Vince Gair as ambassador to Ireland and the Holy See in an attempt to free up his Queensland senate seat, the then government solicitor was asked for advice on when Gair was deemed to have begun serving in what was ruled an “office of profit”, as the timing was at issue.

The government solicitor advised he was deemed to have begun from the day he agreed to take the job – and that his parliamentary seat should be considered vacant from that moment.

During the February 11 estimates hearing, Varghese revealed Bishop sought his advice on January 30 about Ruddock’s proposed envoy role and how it might work. He told the senate committee that Ruddock would not be a public servant while he was still in parliament and was unsure whether or not the former minister would continue in the envoy role after he retired. He said that was a matter for the government.

“Were he to continue after he has left the parliament, then I expect we would need to enter into some contractual arrangement with him,” Varghese told the senators.

Bishop confirmed to The Saturday Paper that no decision had been made on whether Ruddock’s position would extend beyond his parliamentary service.

Varghese confirmed the department had not budgeted for the newly created position or any associated expenses. “We will absorb the costs,” Varghese said.

Ruddock’s job is similar to the Labor government’s appointment of Russell Trood, back in 2011-12.

Trood was one of five envoys Kevin Rudd appointed to lobby for Australia’s bid to win a temporary seat on the UN Security Council. With then prime minister Julia Gillard’s agreement, Rudd had them designated special envoy to the prime minister, in order to open more doors.

Two were diplomats and three others, including Trood, were former – not serving – parliamentarians. They were each paid a stipend for their work.

Assigned to eastern Europe, Trood said he was paid about $500 a day, plus travel costs and associated expenses. For just over a year, Trood travelled regularly to countries including Ukraine, Georgia, Azerbaijan, Armenia, Serbia and Slovenia.

“I think the offices are a very valuable way of extending Australia’s diplomatic footprint,” Trood told The Saturday Paper. He doubts the latest appointments would be found to be in breach of section 44.

“I think the form of appointment is probably critical as to whether it’s an office of profit,” he said. “And since this is not an executive council appointment, I think it’s unlikely to offend that clause in the constitution.”

Rudd also appointed former deputy prime minister, Nationals leader and ambassador to the Holy See Tim Fischer and former Labor frontbench MP Bob McMullan as envoys.

Fischer was assigned to lobby the governments of Bhutan and of certain African countries where he’d had a connection.

“Both the president of South Sudan and the president of Eritrea love Akubra hats,” Fischer told The Saturday Paper. “I broke the ice with Akubra hats.”

McMullan, who lobbied in east Africa, in Ethiopia, Kenya, Uganda, Namibia, Rwanda, Tanzania and South Africa, said he recalls that the Department of Finance obtained advice that the positions were not “offices of profit” and also did not conflict with his receipt of his parliamentary pension. But he was not in parliament at the time.

“The key question is not whether they [the new envoys] get paid,” he told The Saturday Paper. “The key question [in our case] was how we were appointed and who made the decision.”

3 . Ministry reshuffle

The position of the man Treasurer Scott Morrison described this week as “our finest ever trade minister” is slightly different. Robb’s appointment as special envoy for trade emerged as Prime Minister Malcolm Turnbull reshuffled his ministry last weekend. Robb, along with former Nationals leader Warren Truss, announced he would quit politics at the next election and not seek reappointment to the ministry.

Their vacancies, along with those of former ministers Mal Brough, Jamie Briggs and Stuart Robert, who had stepped down amid questions about their conduct, prompted Turnbull’s reshuffle, which saw Steve Ciobo elevated to the trade portfolio with Robb retained in a new mentoring role.

“He’s getting out on top and having said that, he’s made a lot of contacts, a lot of good contacts, continuing contacts, and so it’s important that he hands over to Steve Ciobo, whom he recommended as his successor,” Turnbull said, unveiling the new line-up.

Robb’s envoy role appears likely to end when he retires from parliament.

In the meantime, he is on a 10-day trip representing Australia and leading a business delegation to the United States for what’s known as “Australia United States Business Week”. From there he travels to Cuba, leading the first official Australian business delegation to the island.

When he left on Monday, Robb was minister for trade and announced his trip in a statement issued quite properly on ministerial letterhead.

But at 2.34pm on Wednesday, San Francisco time, as Ciobo was sworn in at Government House in Canberra, Robb ceased to be minister and became envoy.

Late this week, it was not clear whether Robb’s salary had been reduced back to that of a backbencher or if he continued to be paid at ministerial level.

Ciobo was headed to the airport after the swearing-in to join him in the US.

“I think it’s going to work brilliantly,” Ciobo told Radio National on the eve of his elevation. He said Robb’s new role would include making introductions and “it should happen more often”.

“Doesn’t it make sense to not just pull the blinds down on his experience, his knowledge, his contacts?”

Others also welcome Robb’s appointment as innovative and potentially valuable – a kind of ministerial mentor to his successor, employing both his experience and his well-thumbed contact book. Trade and economics specialist and Australian National University emeritus professor Peter Drysdale believes the Robb appointment could be very helpful, especially in negotiations on the proposed South-East Asian free trade agreement, known as the Regional Comprehensive Economic Partnership (RCEP).

“With India, Indonesia and RCEP in midstream and Robb’s experience in these negotiations a key ingredient and asset, his role in the transition could be crucial,” Drysdale told The Saturday Paper. “RCEP is of broader strategic importance and Robb brings weight and understanding to that that few, if any, have. Any difficulties that might arise from a trade policy double-act are likely to be managed deftly by Robb.”

But Anne Twomey said that if the government had entered into a contract with Robb – even if it were unpaid – it might well lead to his disqualification from parliament.

Orr said that even if the appointments were found to be constitutionally sound, as he believed was likely, they raised other questions. He said section 44 existed to prevent MPs from being beholden to the government.

“The deeper purpose – where there should be debate – is whether it’s wise to appoint someone who is an MP,” he told The Saturday Paper.

“If you lure someone to not stand again for parliament with a plum position, it is anti-competitive and anti-democratic if it reduces the field of candidates. If you look at the face of the Electoral Act, any position which induces a candidate to not stand could be seen as briberous.”

He said it also meant that backbenchers who were being engaged by the government, even in unpaid positions, were less likely to question or criticise government policy.

“Is Ruddock conflicted because he answers to Julie Bishop?” he asked. “Will Robb be able to do his job if he is overseas regularly?”