NEWS UPDATE: Bob Day ineligibility affair throws Coalition into more chaos

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Fallout from the Bob Day ineligibility affair has put the Turnbull Government right back into major damage control mode. Managing editor Dave Donovan looks at all the angles.

A POLITICAL EARTHQUAKE hit Canberra yesterday, when it was revealed Bob Day’s recent resignation from the Senate may have been needless, as he wasn't eligible to be there anyway.

The whole thing looks likely to end up in the High Court, with a recount of the SA Senate vote looking a distinct possibility. That means, Family First would not be able to choose Day’s replacement (as a party usually would in the case of a Senate resignation) and would almost certainly lose its only seat in Parliament. Family First will presumably be fighting hard in court to try to prevent that from happening.

The ones looking most pleased about this exciting new turn of events are Labor, who look most likely to pick up Day’s seat in any recount, although it could also fall One Nation’s way.

The big losers – beyond Bob Day and Family First – appear to be the Government, with this latest crisis feeding into the feeling of chaos that surrounds the Turnbull Government these days. There are questions about how long the Government knew Day may have been ineligible, when they first received legal advice on the matter and why they didn't reveal such advice immediately. Also, that this matter may have been a source of contention between outgoing Solicitor-General Justin Gleeson and Attorney-General Brandis in their recent well-publicised spat.

And, ominously, questions have also arisen about whether this new development has opened up a Pandora's box that could engulf other MPs.

We cover all these points in more detail below.


First of all, what's the big problem?

Mark Kenny from The Age gave an overview of what underpins this latest political and constitutional crisis:

The federal government's hopes of passing contested legislation in the Senate have been thrown into chaos following explosive revelations that its most compliant crossbench senator, Family First's Bob Day, may not have been legally elected.

Acting on legal advice, the government now believes it has been renting office space on behalf of the senator, whose company actually owned the premises.

That would be a breach of the constitution amounting to a "direct or indirect pecuniary interest" with the Commonwealth – which is specifically prohibited – and enough to make a person receiving such profit ineligible to stand as a member of the Australian Parliament.

But concerns about Bob Day’s possible breach of s44(v) of the Constitution would not have been news to either Day or the Government, according to David Crowe in The Australian:

Concerns about the ownership of Day’s electorate office in Adelaide have been around for months. The federal government took out a lease on 1 December last year to pay for his office but the building was still linked, indirectly, to Day himself. While he was expected to sever his indirect link to the property, he never did so. It was a car-crash in slow motion.

…. It appears Day was aware before the election of concerns that his arrangement breached Section 44(v) of the Constitution …

Special Minister of State Scott Ryan terminated the lease on October 7. In doing so, he said in writing there were concerns about Section 44. It looks as if Day was given more than enough warning to fix the problem.

This only came after Day had complained about the rent not being paid. On August 4, two days after he was formally declared the winner of a senate seat, he emailed Ryan to point out the rent had not been paid and to insist there was no issue with Section 44.

As Katharine Murphy and Paul Karp noted in The Guardian, the main questions that arise are: 1) when had the Government first received legal advice Day may be ineligible; and 2) had the Government concealed such advice to further its own legislative agenda:

In a statement on Wednesday, Day confirmed the government had legal advice saying he was ineligible but maintained he had no conflict of interest because he had sold the building which the government leased from his associate.

Labor’s Senate leader Penny Wong told the ABC on Wednesday morning the government needed to say “what it knew when” – specifically when concerns about Day’s eligibility to sit in the Senate were first raised with the government.

“The best thing that George Brandis could do as leader of the government in the Senate is stand up and be completely transparent about the timetable,” she said, noting Bob Day voted with the government “nine out of 10 times”.

Australians would “not look too kindly on a government that sat on information or didn’t deal with concerns because it wanted someone’s vote”, she said.

Many spectators, wondered whether Justin Gleeson’s dispute with George Brandis was connected to this matter:

Because as Sydney Morning Herald political editor Bevan Shields tweeted, Solicitor-General Justin Gleeson did mention something that sounded spookily similar in a Senate Committee hearing on October 14:

The connection was denied on ABC Radio Breakfast this morning by Finance Minister Mathias Cormann:

However, Cormann also said the Government he had known about the matter for at least four weeks:

Which led to a further obvious question, why hadn’t they asked for the advice sooner?

So it’s hi ho, hi ho and off to court we go — to see who will replace Bob Day in the Senate.

Phil Coorey in the Australian Financial Review:

The Court will first rule whether Mr Day's re-election was invalid. If it does find this, it will then dictate the process of replacing him.

Following a precedent from 1987 when Robert Wood from the Nuclear Disarmament Party was found not to have been validly elected, the Court would most likely order a full recount of the Senate vote in SA after eliminating Mr Day from the ballot paper.

It would also have to determine whether Mr Day's 25,000 above-the-line votes could go to Family First's second candidate on the ticket.

The wheels of justice turn slowly, so this could take a while, with the Upper House likely to be down a senator for the rest of the year.

And as for who might replace Day, ABC psephologist Anthony Green has Labor then One Nation as favourites in the event of a recount:

The ABC's election analyst, Antony Green, said if Day's election were to be ruled as invalid, he would effectively be erased from the last Senate ballot paper, leaving only one other Family First candidate there.

Green said if there were to be just one candidate on the ballot paper concerned, questions would then arise about whether the party was entitled to have its own group column on the ballot paper.

"If excluded as a column on the ballot paper, the preferences of Family First would be distributed to other parties on the ballot paper as a first choice and the final seat may be won by either Labor or One Nation, based on a recount of that type," he said.

And there could be even more far-reaching implications from this affair, with the possibility it could have opened up a big can of constitutional worms:

Anyway, those were just a few of the angles in this new Turnbull Government crisis, but there are plenty more, just like there will be a lot more news and revelations to come. 

Popcorn, anyone?

Keep up-to-date with everything all Bob on the live #BobDay Twitter feed:

You can follow David Donovan on Twitter @davrosz

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