High Court's decision to dismiss Hollie Hughes shows section 44 of the constitution needs updating

High Court's decision to dismiss Hollie Hughes shows section 44 of the constitution needs updating

High Court's decision to dismiss Hollie Hughes shows section 44 of the constitution needs updating

Updated 16 November 2017, 17:20 AEDT

About one in six workers in Australia would be deemed ineligible to run for Parliament under the current rules, including teachers, police officers, nurses, doctors, public servants.

The High Court may have just made a referendum on the dreaded section 44 of the constitution necessary.

And it's not because of the section's citizenship provisions, which have cut down eight parliamentary careers in the past four months and threaten several others.

No, it's the part of section 44 that bans any candidate who "holds any office of profit under the crown".

Wednesday's High Court ruling that rendered Liberal senator-in-waiting Hollie Hughes ineligible shows the absurdity in the provision's application.

Ms Hughes did not believe she'd won a spot in the Senate at the 2016 election. No-one did, certainly not the Australian Electoral Commission.

But a year after the July 2 election, Ms Hughes took a part-time job with the Australian Administrative Tribunal. Her appointment was announced by Attorney-General George Brandis on June 28.

On October 27, 43 minutes after Nationals deputy leader Fiona Nash was found by the High Court to have fallen foul of the citizenship provisions in s.44, Ms Hughes resigned from the AAT in a letter to the Governor-General, anticipating that she was in line to take Ms Nash's now vacant seat in the Senate.

But sensing that agitators inside the Liberal Party would rather have Jim Molan replace Ms Nash, Ms Hughes decided to clear up any question of her eligibility early, rather than let it hang.

Against the advice of friends in Government (some of whom undoubtedly made shy by the High Court's apparent preference for literal, black letter law over intervention), she referred herself to the court.

Their reasons are yet to be published, but it appears the seven justices sided with the argument that the 2016 Senate election in NSW effectively did not end because one of its candidates, Ms Nash, wasn't eligible.

In effect, to keep her own eligibility clean under section 44, Ms Hughes had to steer clear of taking any job that was taxpayer-funded if she anticipated a candidate ahead of her may be struck down by the constitution.

Even Nostradamus would have struggled anticipating that.

Under this logic, if Ms Nash's rights to dual citizenship because of her Scottish dad had been uncovered five years into her six-year term, Ms Hughes would've still been rendered ineligible.

Whatever the reasoning, the Greens will be scrambling to assure themselves that Andrew Bartlett, who replaced Larissa Waters, is safe from challenge.

When he nominated he had a contract as a researcher at the Australian National University.

And the eligibility of Jacqui Lambie's expected replacement, Devonport Mayor Steve Martin, may also come under question.

Section 44 (4), which states "any person who … holds any office of profit under the crown … shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives" is a significant restriction on Australians standing for Parliament.

There are carve-outs. It doesn't apply to state or Commonwealth ministers or those in the Army or Navy.

But think of the folk it does affect who might be discouraged by from seeking public office: teachers, police officers, nurses, doctors, public servants.

Take the case of Labor MP Mike Freelander.

A respected paediatrician who's delivered thousands of babies into the world, Dr Freelander was approached by the Labor Party to contest the seat of Macarthur. It was a very tough decision for him.

Section 44 would require him to give up his job at Campbelltown Hospital even if the 62-year-old was to nominate. He felt this would be abandoning his patients and offered to keep seeing them unpaid, yet this was still considered risky under section 44.

He overcame his reluctance and won the seat. His background and life experience has been a valuable addition to the parliamentary gene pool, already overpopulated as it is by lawyers and ex-political staffers.

But how many other public sector employees have been dissuaded from running for Parliament?

There are 2 million public sector employees in Australia, or about one in six workers in Australia.

Section 44 needs updating. It may have been drafted to disqualify people with conflicts of loyalty, but has proved to be anachronistic and rubs roughly against the principle that any citizen should be able to stand for Parliament.