Jacqui Lambie’s potential replacement in the Senate should be found ineligible because his office as mayor of Devonport amounts to a conflict of interest, the failed One Nation candidate has argued.
In high court submissions, released on Monday, Kate McCulloch’s counsel argued that Steve Martin’s local government position amounted to an “office of profit under the crown”, preventing his election due to section 44(iv) of the constitution.
After Lambie quit the Senate over her dual citizenship, the second candidate on her ticket, Martin, is set to take the seat in a recount of the 2016 election results pending the outcome of the high court test of his eligibility which could see the One Nation candidate take the seat instead.
Martin intends to take up the seat and has said he had advice from the clerk of the Senate in 2016 that he was eligible to stand.
McCulloch’s submissions argue that the crown has “the power to control, directly or indirectly, the remuneration attached to the office, or the major’s receipt of it”.
That constitutes “a real risk of crown influence on the decision making of the office-holder”, it said.
The crown in Tasmania also had the power to to suspend or remove Martin from office, contrary to the purpose of section 44(iv) which is to prevent the executive from gaining control of the parliament, it said.
McCulloch argued that the fact Martin had been elected to both positions was not relevant to the question of whether the mayoralty was a disqualification.
But the argument about “elections and democratic accountability cuts both ways … precisely because local government councillors are elected to their office, they would have a conflict in their public duties when simultaneously sitting in multiple legislatures”.
McCulloch’s submissions noted that in the case of Sykes v Cleary, Phil Cleary was disqualified for his occupation as a teacher and argued that the risk of conflicts of a mayor being elected to federal parliament was “much greater”.
Even if Martin intends to quit the Devonport City Council before sitting in the Senate, he should be disqualified because “the law required that he resign from his current offices prior to nomination for the Senate”, McCulloch argued.
In November the high court found Hollie Hughes ineligible to replace Fiona Nash in the Senate because she took up a job at the administrative appeals tribunal between the 2016 election and the recount election, even though she resigned the job.
That’s because the period of selection – during which a candidate must be free from disqualification – extends from the time of nomination until a seat is validly filled.
Martin and the attorney general are due to make submissions by 22 January before a full court hearing on 6 February.
Questions have also been raised about whether Larissa Waters’ replacement, Andrew Bartlett, may have held an office of profit under the crown due to his former employment at the Australian National University.
The Greens have sought fresh legal advice, but there is no high court authority on the point and nobody has challenged Bartlett’s election.
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