International Law

I have another piece online at The Drum today, Is Election 2010 heading to the courts?:

Tight elections all over the world almost inevitably end up in the courts. And it's looking increasingly likely that the recent federal election will be no different.

With the election result precariously poised and able to fall into the hands of one party or another with even the gentlest push, the protagonists are pursuing every possible avenue to securing government.

One avenue has been to re-read the Constitution to try and find any previously forgotten or overlooked provision that may tip the balance one way or the other. So far this has involved a few faux constitutional issues being thrown into the mix.

The most notable constitutional rumour that had swirled around political and public circles over the past few days had been that Wyatt Roy was not qualified to be a member of the House of Representatives.

On the face of it, it is easy to see how so many people made this mistake. Section 34 of the Constitution does indeed say a member of the House of Representatives "must be the full age of twenty-one years".

However, section 34 also begins with these words, "Until the Parliament otherwise provides", which gives the Commonwealth the power to legislate whatever qualifications they like. And indeed, the Commonwealth has done just that. Section 163 of the Commonwealth Electoral Act 1918 provides that a person who "has reached the age of 18 years" is qualified to be elected as a member of the House of Representatives.

More recently, it has been suggested that several successful candidates could face a constitutional challenge because they were local councillors when nominated. While this challenge will most likely be dismissed, it does raise some interesting issues.

Read the rest here.