By Malcolm Mackerras

This is an article about former senator Scott Ludlam, a man I have never met. Readers, therefore, may wonder why I would think to write an article about a single former politician. The answer is that I have known former senator Bob Day for many years. This website contains two articles by me on Day, the first expressing my admiration for him (Why I admire Bob the Builder) posted on Monday 11 April 2016, the second expressing my sympathy with him (What will happen to Bob Day’s vacant Senate seat?) posted on Monday 7 November 2016. Finally, I had published a third article on Friday 7 April 2017 titled Will Family First retain its Senate seat? Given the striking similarity between the Day and Ludlam cases, I feel a duty to write one article on Ludlam.

Day is a man of the hard right, while Ludlam is a man of the hard left. It is not surprising, therefore, that neither man would express admiration for, or sympathy with, the other. That fact would be no excuse for me to fail to express my admiration for, and sympathy with, BOTH men. They did exactly the same thing. In expectation that the High Court would confiscate their seats from them, they resigned in dignity. Then their detractors threw as much mud at them as possible.

I dissented from all the High Court decisions in these cases. They have been for Senate-seat winners Robert Wood in 1987, Heather Hill in 1998, Rodney Culleton in January 2017 and Day in February 2017. However, my opinion does not matter. High Court judges have power, I have none. The interest for me lies in my ability to demonstrate the superiority of the electoral system for the House of Representatives over that for the Senate. The same thing has happened in recent times in respect of two members of the lower house, Phil Cleary in 1992 and Jackie Kelly in 1996. In effect, the electors of Wills (Victoria) in March 1993 and of Lindsay (NSW) in October 1996 were allowed to express their dissent from the ruling of the High Court. In both cases, the decision of the Court was over-turned by the people. That cannot happen in respect of senators. The seat is confiscated, and that is that.

The commentary on Ludlam to which I object is that which I have heard from a Liberal senator and a right-wing independent commentator. Neither expressed any sympathy for Ludlam. Both drew attention to the fact that he was told three years ago that he was a New Zealand citizen and he should, therefore, have renounced his “foreign” citizenship at that time. What these commentators should acknowledge is that if Ludlam had so renounced, he would have told his enemies that he had not been eligible to contest the April 2014 re-election of senators for Western Australia. To do that would have been a gift to his enemies. Consequently, I think a description of the various elections of Ludlam is called for – so that people can understand his unique predicament.

He was first elected in November 2007. His first preference vote was two-thirds of a quota but he received enough preferences to be elected and he took his seat on 1 July 2008. He was re-elected in September 2013, again with two-thirds of a quota and again receiving enough preferences to be declared elected. Then, the High Court voided the election of all six senators so declared elected, of whom he was one. 

In recent years, that decision of the High Court is the only case of interest to me where I have agreed with the decision. It was handed down on 18 February 2014 and the judgment was written by then Justice Kenneth Hayne, sitting as the Court of Disputed Returns. It gave an affirmative answer to this question: “Did the loss of the 1,370 ballot papers between the fresh scrutiny and the re-count mean that the 1,370 electors who submitted those ballot papers in the poll were ‘prevented from voting’ in the Election for the purposes of section 365 of the Commonwealth Electoral Act 1918?”

The story of the re-election in Western Australia on 5 April 2014 was of such interest to me that I devoted a special article to it on this website, Senate election the best exercise in democracy”, posted on Wednesday 9 April 2014. The star performer was Ludlam – so let me give some statistics. In September 2013, there were 1,310,278 formal votes and the quota was 187,183 votes (14.3 per cent). In April 2014 there were 1,277,804 formal votes and the quota was 182,544 votes (14.3 per cent). Ludlam received 122,752 first preference votes in 2013 (9.4 per cent) so he needed preferences to be elected. In 2014, however, he received 198,845 first preference votes which was a quota in his own right. At the 2016 Senate general election, Ludlam again received a quota in his own right, but that was not so difficult since, with 12 being elected, the quota was only 7.7 per cent. Nevertheless, he was given a six-year term, unlike all the other cases who were given short terms.

So, is there a come-back for Ludlam? Probably not. His successor will be Jordon Steele-John, a 22-year old university student who has cerebral palsy. While there are several scenarios of a Ludlam comeback, they seem to me to require such unselfishness on the part of Steele-John and the other WA Greens senator, Rachel Siewert, that I cannot see any of them happening. These scenarios are too complicated for me to describe here.

Even as I was writing this article, the news came through that Larissa Waters (Greens, Queensland) had resigned her Senate seat – for the same reason as Ludlam. Having expressed such sympathy for two men (Day and Ludlam) I now feel I must express equal sympathy for the one woman, Waters! However, her replacement, Andrew Bartlett, will be an effective performer for the Greens, given his previous membership of the Senate and the fact that he was once a highly effective leader of the Australian Democrats.

There have now been six cases of this phenomenon, Wood, Hill, Culleton, Day, Ludlam and Waters. All six had their seats confiscated from them by the High Court, or resigned in expectation of such confiscation. None could appeal to the voters against the decision. None is likely to have a comeback. That must surely be a warning to future aspirants for political office. Beware the power of the High Court – and do what you need to do to be on the right side of the judges!

(Malcolm Mackerras is Honorary Fellow of Australian Catholic University.