HIGH profile independent Despi O’Connor will continue her campaign for the federal seat of Flinders despite acknowledging a constitutional “roadblock” if she wins.
The Australian Electoral Commission says that if O’Connor is successful “her eligibility to serve as the Member for Flinders must be determined by the Court of Disputed Returns”.
The dramas in O’Connor’s campaign became apparent early last week when she issued a statement that her employment as a teacher by the state education department may breach section 44(iv) of the Commonwealth of Australia Constitution Act.
Following advice from “barristers, lawyers, and constitutional experts” O’Connor issued a statement on Friday saying she had “tendered my resignation” as a teacher and ”there is nothing to categorically say that I am ineligible to run for election or sit for parliament”.
“My name is on the ballot. My campaign continues. I am standing to take Flinders to Canberra.”
Earlier that same day she told The News “we’ve left everything [campaign-wise] for now” and was awaiting further legal advice. “They can’t take me off the ballot paper … I could still win.”
The relevant section of the constitution states: “Any person who holds any office of profit under the Crown, or any pension payable during the pleasure of the Crown out of any of the revenues of the Commonwealth shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives”.
O’Connor is one of 10 candidates running in Flinders, which has been held for the Liberal Party for more than 20 years by retiring MP, Greg Hunt. She is a former Mornington Peninsula Shire mayor and remains a Briars Ward councillor, although she stood down from her council duties from 15 December 2021 until the close of polls in the 21 May federal election.
O’Connor controversially announced her intention to stand as an independent within days of missing being chosen by the Voices of Mornington Peninsula group.
Relations between the O’Connor camp and the Voices group have been strained, as her decision to stand potentially splits the independent vote between herself and the Voices candidate Sarah Russell (“Independents in ‘peace talks’ over ‘split’ vote” The News 26/4/22).
O’Connor’s nomination was subsequently supported by the Simon Holmes a Court-backed Climate 200 group and her picture and profile remain on the group’s website.
The AEC’s Friday statement said: “The election in the seat of Flinders will proceed including all candidates as declared and Ms O’Connor’s name will appear on the ballot paper for the Division of Flinders.
“Ballot papers have been printed and distributed across the country for early voting to begin on Monday and many postal voters have already received their postal voting packs.
“If Ms O’Connor is elected, her eligibility to serve as the Member for Flinders must be determined by the Court of Disputed Returns.”
The issue facing O’Connor appears to be the same that derailed Philip Cleary in the 1992 by-election for the seat of Wills.
In Cleary’s case, he had taken leave without pay from the Victorian public school system with the intention of resigning if he was successful.
After he won the seat, the result was challenged in the High Court sitting as the Court of Disputed Returns. The majority of the court decided Cleary had held an “office of profit under the Crown” and was therefore “incapable of being chosen”.
The court found the entire by-election was void.
First published in the Southern Peninsula News – 10 May 2022
