Senate contenders after High Court invalidated Bob Day’s election
BOB Day may have to hand back his salary and super after the High Court ruled the former Family First senator was not validly elected. Now a recount may see a candidate who got just 152 votes replace him.
- D Day for Family First
- Family First Senator Bob Day resigns
- Liquidators to investigate money Bob Day gave to Family First
- Bob Day’s victims fear they’ll get nothing back
BOB Day could be forced to hand back salary payments and taxpayer-funded superannuation after the High Court of Australia ruled the former Family First senator breached the constitution.
Family First number two Senate candidate Lucy Gichuhi – who polled just 152 primary votes at the last election – is the favourite to win a special recount of ballot papers which will be used to determine who replaces Mr Day.
However, it is possible Labor or One Nation could stage an upset victory to win the seat.
The High Court on Wednesday ruled that Mr Day became ineligible to sit as a senator on February 26 last year because he had a pecuniary interest in the lease arrangement for his taxpayer-funded electorate office in Kent Town.
Between the end of February 2016 and his resignation from the Senate in November Mr Day’s pre-tax salary and superannuation entitlements exceeded $130,000.
Mr Day is already being pursued by creditors over the collapse of his Home Australia group of companies, which went into liquidation last year with an estimated $37.8 million in debt.
Payments to MPs and senators who are not entitled to sit in Parliament automatically become debts to the Government.
Labor MP Nick Champion said Mr Day had received salary payments he was not entitled to should pay the money back.
“This bloke has left hundreds of families in the lurch with half-finished houses – he doesn’t deserve any sympathy,’’ Mr Champion said.
“If he won’t repay taxpayers’ money, then Family First should.”
Special Minister of State Scott Ryan’s office confirmed the Government was considering the High Court ruling and whether payments could be recovered from Mr Day.
Creditors hurt by the collapse of Mr Day’s businesses have already taken out caveats on his family home.
If Ms Gichuhi fails to win the seat it could go to Ms McEwen or One Nation candidate Steve Burgess.
Former Liberal senator Sean Edwards has only a remote chance of winning.
Federal Attorney-General George Brandis said the recount should be completed in time for Mr Day’s replacement to be sworn in when Parliament resumes for the Budget session on May 9.
Mr Day told The Advertiser he was “a bit disappointed” but philosophical about the outcome.
“It’s good in times like this to have a strong faith to fall back on,” he said.
“I worked very well with Lucy and I think she’ll make a great Senator.”
Ms Gichuhi was on her way to work when the message came through that she could become a senator.
She said her first priority was “to motivate and integrate migrant communities so they become totally Australian”.
“That’s my dream,” Ms Gichuhi said.
Asked on Wednesday about her citizenship, Kenyan-born Ms Gichuhi said she became an Australian citizen when she arrived in Australia in 1989 and that Kenya did not allow dual citizenship.
Being a dual citizen would make her ineligible to be a senator.
WHY THE COURT WAS ASKED TO RULE
The court was asked to rule on whether Mr Day’s links to the company that owned his taxpayer-funded electorate office in Kent Town breached the Constitution.
The office had been held by B & B Day Pty Ltd, for the Day Family Trust.
B & B Day sold the property to Fullarton Investments Pty Ltd, with B & B Day lending the $2.1 million purchase price to the new owner.
Fullarton Investments was to have used rental payments from the Government to repay B & B Day, although no rent was actually ever paid.
The court heard Mr Day expected B & B Day to use the rent to service a National Australia Bank loan facility.
Section 44(v) of the Constitution prohibits candidates for Parliament from having “any direct or pecuniary interest in any agreement with the Public Service of the Commonwealth”, unless they are members of an incorporated company with more than 25 members.
Mr Day’s Home Australia group of building companies went into liquidation last year with an estimated $37.8 million worth of debts.
The court ruled that the Federal Government should pay the legal costs incurred by Mr Day and Ms Mcwen.
TIMELINE: POLITICAL LIFE OF BOB DAY
2006 — South Australian housing developer Bob Day endorsed by federal Liberals to run in seat of Makin, with strong support from John Howard.
2007 — Labor wins Makin and Kevin Rudd takes government.
2008 — Day unsuccessfully contests Liberal preselection in Mayo, then quits to run as a Family First candidate. Fails to win seat.
2010 — Day runs as Family First senate candidate in SA, but fails to win seat.
2013 — Day wins SA senate seat for Family First.
2014 — Day tells Finance Department officials he doesn’t want to use former senator Don Farrell’s Adelaide CBD office. Instead he wants to use a Kent Town building. Finance officials tell then-Special Minister of State Michael Ronaldson that Day owns the building and intends to sell it on condition the office is leased to the commonwealth. After lengthy negotiation Day agrees to terms for lease.
2015 — Lease signed between building’s new owners and commonwealth. No rent paid.
August 2016 — Day approaches new Special Minister of State Scott Ryan about rent on the office. Ryan seeks further information on the background of the lease and discovers there may be a constitutional breach.
October 2016 — Ryan terminates lease and seeks independent legal advice from constitutional law expert David Jackson. Day announces he will resign as his Home Australia Group of companies goes into liquidation. Ryan receives legal advice regarding the possible invalid election of Day, with concerns over indirect pecuniary interest because building owner owes Day money. November 2016 — Day tenders his resignation to the Senate President. Senate refers the lease matter and Day’s possible invalid run for parliament to the High Court.
April 5, 2017 — High Court finds Day was ineligible to run under section 44 of the constitution, which states a member or senator can be disqualified where there is “any direct or indirect pecuniary interest in any agreement with the public service of the commonwealth”.