The presence of ineligible candidates on ballot papers could expose election results to challenge even if the winners are qualified to sit in parliament, an academic has warned.
The University of New South Wales constitutional academic George Williams issued the warning after at least two bankrupts – Rodney Culleton and Fraser Anning candidate Julie Hoskin – successfully nominated and questions were raised about 19 United Australia Party candidates who made incomplete or inconsistent declarations to the Australian Electoral Commission.
After a spate of resignations and disqualifications in the 45th parliament, the joint standing committee on electoral matters studied reform options for section 44, which disqualifies dual citizens and undischarged bankrupts, among others, from sitting in parliament.
In its report the committee warned that the presence of ineligible candidates on the ballot creates potential that “a successful candidate could have their election challenged on the basis of preference flows from an ineligible candidate”.
Williams said it is “a concern” he had raised in his submission that “hasn’t been tested in the high court” and is one of the “new frontiers” of section 44 challenges.
“It’s possible where, in a House of Representatives seat, the positioning of an unqualified candidate may actually have altered the result from one to another, you could say the successful candidate won because of an unqualified one,” he said.
Williams said this was possible where the order of elimination, and hence distribution of preferences, would have been different without the ineligible candidate. “If it turns out their presence affected the result, there may well be a challenge.”
Williams said that the checklist system is “flawed and incomplete” and “not working”. The AEC has warned it has no power to reject completed applications, in a statement explaining why Culleton, who is both an undischarged bankrupt and was found ineligible to stand at the last election due to a conviction (later annulled), will appear on the ballot in Western Australia.
The AEC noted that the national personal insolvency index indicates that Culleton is currently listed as an undischarged bankrupt.
Hoskin, Fraser Anning’s candidate in Bendigo, will also appear on the ballot despite declaring she is an undischarged bankrupt, a result she hopes to overturn on appeal.
On Monday Guardian Australia revealed at least 18 United Australia party candidates including Shane Wheatland in Indi failed to provide birth details of their parents or grandparents, even in cases where candidates admitted their parents or grandparents were born overseas.
The UAP candidate for Blaxland, Nadeem Ashraf, claimed in a statutory declaration that he lost dual Pakistani citizenship automatically when he became Australian in 1986. Even when taking up another citizenship, Pakistani law requires a declaration of renunciation, which Ashraf failed to provide.
The Labor candidate, Eric Kerr, told Guardian Australia he would consider a challenge if the UAP candidate in Indi is ineligible. “If it does influence the decision or the outcome then maybe it is something we want to look into,” Kerr said.
Kerr said that despite “all the politicians who had to step down” the issue of dual citizenship was still a “huge grey area”.
Kerr said parties “have been very fearful” of losing candidates to section 44 and he faced an “insane” routine to demonstrate his eligibility, complicated by the fact he is a sperm donor child who only met his father, a New Zealander, when he was 18.
Despite the spectre of eligibility challenges in the 46th parliament, the Sydney University constitutional academic Anne Twomey said the matter is “technically unresolved” but there is “sufficient old high court authority” to suggest it would not disqualify winning candidates based on preferences from ineligible candidates.
Twomey cited the fact disqualification is “only directed at the person chosen, not at the other candidates”. “In Re Wood a unanimous high court rejected the argument that the existence of an unqualified candidate would nullify the election of a qualified candidate.”
Twomey suggested the court could take a different approach where “the existence of a disqualified candidate may affect preference flows” but would be reluctant to do so because it would cause “constant litigation and governmental instability, especially when elections are close”.
A spokesman for the United Australia party told Guardian Australia “all [candidates] are eligible and compliant under s44”, but failed to explain why they had not completed the checklist.
