Until the Constitution is changed or the High Court changes its collective mind, all federal parliamentary candidates need to think carefully about Section 44 — and that includes independent Wentworth contender Kerryn Phelps
For the crucial Wentworth by-election on October 20, the high-profile independent Kerryn Phelps is currently in with a chance of beating the well-credentialed Liberal candidate, ex Australian ambassador to Israel Dave Sharma.
This is why Labor is running dead in Wentworth. It is also a reason why some mischievous medicos and MPs have suggested to me that Dr Phelps might fall foul of the same constitutional issue that Labor said should disqualify Peter Dutton. Remember: Labor engaged a top QC to argue that the Home Affairs Minister was disqualified from sitting in the parliament by operation of Section 44 of the Constitution, because a family business that benefited him was receiving childcare subsidies from the Commonwealth government.
Section 44 doesn’t only disqualify dual citizens. It also disqualifies people who have a financial relationship with the Commonwealth government. That is why at the last federal election, when I stood as the lead NSW Senate candidate for the Australian Sex Party (now the Reason Party) I had to resign from my position as a member of the NSW Civil & Administrative Tribunal. This was because I was in receipt of monies from the crown. In fact, after the completion of the last federal election I was not reappointed to this position because a honcho maintained that my membership of the Sex Party would have “tainted the tribunal!”
At the beginning of this current federal parliament, Senator Bob Day was found to be ineligible to sit because the Commonwealth was renting an office in a building he owned. Years ago, Phil Cleary was found to be ineligible because he was a schoolteacher which, in the High Court’s judgment, was an “office of profit under the crown”. Labor reckons that the High Court could take a rather broad view of what was an “interest in a contract with the Commonwealth”, just as it’s taken a broad view of what was an office of profit under the crown.
It’s this that brings us to the question recently raised about Dr Phelps eligibility to stand for federal parliament in the Wentworth by-election.
It was claimed that the former Australian Medical Association president, with a busy medical practice in the eastern suburbs of Sydney (right in the heart of Wentworth), might well be in receipt of monies from the crown. If Dr Phelps has been seeing patients since she formally became a candidate and, if any of them have been bulk-billed, she would have been in exactly in the same position that Labor claimed Dutton was in: namely ineligible to sit in the parliament and precluded from taking her seat if elected.
If this were true, surely Labor wouldn’t have wanted to dud the people of Wentworth by conniving at the election of an ineligible candidate? And, at minimum, Phelps would have had to clarify her position: had she been seeing patients since nominating as a candidate; have some of them been bulk-billed; and does she have legal advice that she is not, thereby, in jeopardy under Section 44 of the Constitution?
However the truth of the matter is that Dr Phelps doesn’t appear to own the thriving medical practice in which she works. And if she doesn’t accept patients on special arrangements with the government, such as complex pregnancies and mental health conditions, then she is fine to stand as a candidate. Since Dr Phelps is currently campaigning and not working as a medical practitioner she is quite okay. Indeed when it comes to her eligibility to stand for federal parliament, unlike some previous sitting MPs, she is squeaky clean.
But while this is the case, a key question for Dr Phelps to answer is, if she were to win Wentworth, whether she would guarantee Supply and not support a no-confidence motion against the Morrison Government. To this crucial query, voters in this crucial by-election need to receive an unambiguous answer.
For what it’s worth, I think the High Court took the wrong view in Sykes v. Cleary back in 1992. Being paid by the Victorian government as a schoolteacher should hardly be an “office of profit under the Crown” for the purposes of section 44 of the Commonwealth Constitution. This section was designed to prevent serious conflicts of interest: by people with divided loyalties; or by people whose personal financial relationship with the Commonwealth was so substantial that it might make them incapable of voting for the public interest. If a schoolteacher or a military officer, for example, is so compromised as to be incapable of voting in accordance with the public interest, who could be trusted?
Could pensioners who get most of their income from the Commonwealth government be ineligible to stand for election? And what about people receiving family tax benefit for their children? Indeed what about taxpayers – don’t they have a vested interest in getting taxes down, not up? Taken to its logical conclusion, the decision in Sykes v. Cleary would give us a parliament of monks, because they’re the only ones without any financial interest in any decision the Commonwealth government makes – and only if their order runs no schools!
But until the Constitution is changed, or until the High Court changes its collective mind, all federal parliamentary candidates need to think carefully about Section 44 and their eligibility as currently defined to sit in the Commonwealth parliament.
For the record, in what might seem to be a rush of moralism, Katter’s Australian Party has confirmed that it has disendorsed its candidate for Wentworth, Robert Callanan, an accountant, after he failed to disclose his links with an upmarket Sydney brothel.
As it happens, Mr. Callanan is number 1 on the ballot paper, so he will still receive the donkey vote. Although why such a thoughtless action is so termed, when donkeys are not only stubborn, but extremely clever, is beyond me.
Ross Fitzgerald AM is Emeritus Professor of History & Politics at Griffith University the author of 40 books. These include the political/sexual satires So Far, So Good: an entertainment and Going out Backwards: a Grafton Everest adventure, shed by Hybrid and which was shortlisted for the 2017 Russell Prize for Humour Writing.