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Earl Grey, famous for his family’s tea, has another claim to fame in Australia. He was the first person to achieve Julian Assange’s ambition – to be elected to an Australian Parliament while living in London, without any intention of travelling to Australia to take up the seat. To be fair to the Earl, he did not ask for this honour. In the mid-1800s, a person could be nominated without his consent, and he was.

Earl Grey’s nomination, like that of Assange, was more about making a political statement. In the 1840s, the people of the Port Phillip District of New South Wales did not like being governed from Sydney. They thought that Sydney-siders knew as much about them and their wishes as people in London. So they nominated as their candidates the Duke of Wellington, Lord Palmerston, Lord Brougham and Earl Grey, electing Earl Grey on 20 July 1848. Despite never visiting Australia, Earl Grey, who was Secretary of State for the Colonies, was a Member of the NSW Legislative Council until November 1850, when his seat was vacated due to his failure to attend a sitting. The Sydney Morning Herald criticised the ‘flagitious mockery of the Port Phillip voters’ in electing the Earl and suggested that they be whipped for trifling with the solemn duties imposed upon them by their country. But they were successful in making their point. Earl Grey responded in 1850 by the enactment of legislation to separate the Port Phillip District from New South Wales, creating the State of Victoria and permitting it to have its own Parliament.

Julian Assange’s proposed nomination for the Australian Senate is just as much a political statement and just as controversial. Unlike the 1840s, Australia now has far more rigorous laws and constitutional provisions concerning the election of candidates. Even if Assange can rely on the continuing ‘flagitious mockery’ of Victorian voters in electing him, he also has legal and constitutional barriers to surmount.

The first hurdle is the validity of his nomination. The initial problem faced by Assange was that he had lived overseas for many years and was not on the Australian electoral roll. To be nominated, a person must be at least 18 years old, an Australian citizen, and on the electoral roll or qualified to be on it. He could enrol as an ‘eligible overseas elector’, but only within three years of ceasing to reside in Australia and only if he intended to return within six years of departing. Biographical material on Assange, which may not necessarily be accurate, suggests that he ceased to reside in Australia as long ago as 2007, meaning that any such application would be out of time.

Assange’s application for enrolment is apparently based upon the fact that he returned to Australia to visit his mother in June 2010. He appears to be claiming to have ‘ceased to reside’ in Australia in 2010. There is a significant difference, however, between visiting Australia and ‘residing’ in Australia. In order to have ‘ceased to reside’ in Australia, Assange would need to show that he was actually residing in Australia in 2010. That would normally involve residence for a period (usually at least a month) and some evidence that it was his principal place of abode, not just a holiday visit. For example, when it was alleged that a Christian Democrat candidate could not fill a casual vacancy in the NSW Legislative Council because he really resided with his family in Queensland and was not validly on the NSW electoral roll, he had to show evidence that he actually lived in his rented accommodation in New South Wales, including utility bills and evidence of the movement of furniture to his new residence. It is unknown whether Assange would be able to produce such evidence.

The fact that the Electoral Commissioner ‘accepted’ his enrolment is not significant. The Electoral Commission is extremely limited in its power to reject enrolments. Section 172 of the Commonwealth Electoral Act provides that ‘a nomination shall be rejected by the officer to whom it is made if, and only if, the provisions of section 166, 167, 170 or 171 have not been complied with in relation to the nomination’. The nomination can therefore not be rejected on any other grounds. The critical provision is s 170. It provides that a nomination is not valid unless the person nominated declares that he or she is qualified under the Constitution and the laws of the Commonwealth to be elected as a Senator. Hence, if Assange made such a declaration and complied with all the other requirements for nomination set out in those sections, the Australian Electoral Commission would not be entitled to reject his nomination, even if his declaration was incorrect. This was confirmed by Justice Dawson in Sykes v Australian Electoral Commission (1993) 115 ALR 645, where he stated at 649 that the officer to whom the nomination is made is not required to determine whether the person nominated is actually qualified – only that the relevant declaration has been made.

The real question, therefore, is not whether Assange’s nomination was ‘accepted’, but only whether anyone will challenge the validity of his nomination or election in the courts on the ground that he is not qualified under the Constitution or a Commonwealth law. If so, the question of establishing his ‘residence’ will be crucial.

If Assange were elected, there are other possible grounds upon which his election might be held invalid. For example, there is a constitutional prohibition upon the election of a person who is ‘under any acknowledgment of allegiance, obedience or adherence to a foreign power’ or who is ‘entitled to the rights or privileges of a subject or a citizen of a foreign power’. It is unclear what Assange’s relationship with Ecuador is and whether it would result in a violation of this constitutional provision.

Assange’s election could be challenged within 40 days of the election by any candidate or person qualified to vote at the election. The challenge could only be brought before the Court of Disputed Returns (which is the High Court). The Electoral Commission also has the power to dispute an election. The Court would have the power to declare that he was not duly elected or that the election was void. The decision of the Court is final.

If no such challenge is made within the requisite time, the Senate may also refer any question about the qualification of a Senator to the Court of Disputed Returns. This can occur at any time within a Senator’s term.

If a court were to hold that Assange’s election was invalid, then his political party would not be entitled to choose a replacement for him. His election would be held void, resulting in a recount of votes to ascertain the person next entitled to election as a Senator. This approach was taken by the High Court in In Re Wood (1988) 167 CLR 145. Senator Wood was not an Australian citizen at the time of his election. The High Court held that he had therefore not been duly elected and that the election was void, rather than there being a casual vacancy.

If, on the other hand, Assange was validly elected but could not take up his seat for fear of arrest, then he could resign and his resignation would be treated as a casual vacancy. His seat would then be filled at a joint sitting of the Victorian Parliament by a person of the same political party. If Assange didn’t resign, but did not attend the Parliament, he would face two constitutional problems. First, s 42 of the Constitution provides that every Senator ‘shall before taking his seat make and subscribe before the Governor-General… an oath or affirmation of allegiance’. If he did not attend Parliament to make the oath, he could not ‘take up’ his seat. Further, s 20 of the Constitution states that the ‘place of a senator shall become vacant if for two consecutive months of any session of the Parliament he, without the permission of the Senate, fails to attend the Senate’. If Assange did not attend within that period, he would meet the same fate as Earl Grey, with his seat being vacated. The House of Representatives did once give leave of absence to a Member of Parliament, Mr Adair Blain (known as 'Chill'), who was elected while being held a prisoner of war during World War II. However, it is doubtful that the Senate would treat self-inflicted incarceration in the Ecuadorian Embassy to avoid arrest on the same level as being held involuntarily as a prisoner of war while serving his country.

Finally, it is worth noting that if Assange walks out the door of the Ecuadorian Embassy as an Australian Senator, this would not give him any immunity from arrest on criminal charges. While some degree of immunity protects Senators from obligations to attend court during and immediately before and after parliamentary sitting days, it does not extend to immunity from arrest on criminal charges, such as the breach of bail conditions. No Australian politician is above the law, even though some seem to regard themselves as beyond its reach. This is something that one might imagine Wiki-Leaks would applaud.

A shorter version of this post was first published in The Spectator – Australia, 20 April 2013, p vii.