Commonwealth disputes One Nation argument Lambie's likely Senate replacement can't take the job
Updated
Being a local mayor should not prove a barrier to entering federal politics, according to lawyers for the Commonwealth who argue northern Tasmanian mayor Steve Martin should be allowed to replace colourful former senator Jacqui Lambie.
Ms Lambie was forced to resign from parliament after being swept up in the dual citizenship fiasco, which has so far claimed nine political scalps.
That resulted in a recount of the Tasmanian Senate vote, and Mr Martin was the next candidate on the Jacqui Lambie Network ticket.
But One Nation candidate Kate McCulloch had argued the Devonport Mayor should also be disqualified from being elected, because he held an "office of profit under the Crown" — more commonly described as a government job.
The constitution bans public servants from election.
In arguing that Mr Martin should be allowed to enter the Upper House, Solicitor-General Stephen Donaghue QC has made a distinction between someone being employed as a public servant and being elected to public office.
"The offices of mayor and councillor under the [Local Government Act] are elected offices, with specified terms," Mr Donaghue said in submissions to the High Court.
"Appointment to those offices obviously is not in the gift of the executive.
"If the executive government does not appoint the office-holder, then the office is not 'under the Crown'."
But the Solicitor-General said there could be some exceptions to that rule, in the rare cases the government had "extensive power to dismiss the office-holder", or change how much an individual received in pay and benefits while in that role.
One Nation's Kate McCulloch had earlier argued that Mr Martin's role as Mayor could be seen as under the control of the government, because the Tasmanian Government had recently recommended the suspension of one state council and the dismissal of other councillors.
"This is a use of power that has become increasingly common throughout the nation," her lawyers said in submissions.
The next High Court hearing in the case will be in early February.
The court has not only been flooded by referrals in the dual citizenship fiasco, but has faced a number of complications in appointing replacement senators.
Replacements for Ms Lambie, former Senate President Stephen Parry, and former South Australian senator Skye Kakoschke-Moore are yet to be confirmed by the court.
Topics: government-and-politics, parliament, federal-parliament, state-parliament, law-crime-and-justice, courts-and-trials, australia
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