December 13, 2012
What Chance of Julian Assange Being Elected to the Senate?
I think Julian Assange has next to no chance of being elected to the Senate at next year’s election.
It all sounds like a side-show to me, but let me go through the legal and political hurdles that have to be cleared.
The first step to register a political party is easy. It requires a party name of up to six words that must not be obscene or likely to be confused with the name of another party. It requires a standard association constitution that includes as one of its aims the intention to run candidates for Parliament. It must have 500 members whose names are on the electoral roll and not already counted towards the membership of another political party. The party must permit the AEC access to the register to verify the membership exists.
Once registered, the registered officer of the party would be permitted to lodge nominations at the next election on behalf of the party. If the party wished to nominate Julian Assange, then as an Australian citizen he is permitted to contest a Senate seat in any state, even if he is not registered in the state.
The oddity is how Assange would be permitted to nominate. A candidate needs to be over 18, a citizen, and to quote Section 163 of the Commonwealth Electoral Act be “either (i) an elector entitled to vote at a House of Representatives election; or (ii) a person qualified to become such an elector;”
What is strange here is the voter does not have to be on the electoral roll. One of the peculiarities of the Commonwealth Electoral Act is that it establishes a broad entitlement to enrolment in Section 93, but then sets out a range of administrative reasons why a voter can’t be on the electoral roll.
This is especially the case with overseas voters who, while entitled to enrol, often run into the following administrative procedures in Section 94A.
(1) A person may apply to the Electoral Commissioner for enrolment for a Subdivision if, at the time of making the application:
(a) the person has ceased to reside in Australia; and
(b) the person is not enrolled; and
(c) the person is not qualified for enrolment, but would be so qualified if he or she resided at an address in a Subdivision of a Division, and had done so for at least a month; and
(d) the person intends to resume residing in Australia not later than 6 years after he or she ceased to reside in Australia.
So there are a collection of administrative reasons why Assange may be unable to get his name on the electoral roll, but the way the act is written means he only needs to be qualified to be entitled to enrolment to have his nomination accepted.
Do I think Assange can be elected? No. He will be competing with Labor and the Greens for a seat in whichever state he contests, especially against the Greens. Assange would first need to get enough first preferences, say 4-5%, to give him a chance of getting ahead of a Labor or Green candidate, and then need to get both Labor and Green preferences. I would expect Labor and the Greens to swap preferences ahead of Assange. I think it highly unlikely he would receive Coalition preferences, or the preferences of any of the smaller conservative and populist parties.
If he did fluke election, could he take his seat? Probably not, as if he steps outside of the Ecuadorian embassy in London to take his seat, he would be arrested and extradited to Sweden. At some point after 1 July 2014 his seat would be declared vacant by reason of absence and the relevant State parliament would be permitted to fill his vacancy, with the qualification that the person must be a member of Assange’s party.
Then there is Section 44 (i) of the Constitution that disqualifies any person who “is under any acknowledgment of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power”.
I’m not sure how Mr Assange’s current status as an asylum in the Ecuadorian embassy comes into play with Section 44. If Mr Assange was elected and if Section 44 were to be a problem, then the High Court could rule after the election that Mr Assange was not eligible to be a Senator and therefore not eligible to be a candidate. In that case, the court would instruct a re-count take place in which case the second on his party ticket would almost certainly be elected in his place.
So in short, Assange can have a party registered. Under the electoral act he can be nominated as a candidate in any state he wants to be nominated. Section 44 might be a problem but could only be tested after the election. If he were elected he may have difficulty ever taking his seat.
However, having overcome the nominations problems, I also think he has very little chance of being elected.
Posted by Antony Green on December 13, 2012 at 11:25 AM in Electoral Law, Federal Politics and Governments, Senate Elections | Permalink