Does Bob Day decision affect legislation passed?
06 April 2017

One of the trickier questions that has been asked in the wake of the High Court decision invalidating Bob Day's senate election relates to legislation that was passed during his time as a Senator. Is this legislation also invalid? 

The short answer is no. Legislation remains valid even it was passed while a person who was later determined to be ineligible to hold office was sitting as a Senator.

The constitutional ineligibility of Mr Day to be chosen as a Senator does not affect the validity of the Senate’s work - including in the passing of legislation - undertaken while Mr Day was serving as if he were a Senator.

This has been confirmed by court cases which have examined this very question.

In Vardon v O'Loghlin, a 1907 South Australian case in which O’Loghlin was held to have been invalidly nominated as a Senator, the High Court stated that a purported election result would be “regarded ex necessitate (by necessity of law) as valid for some purposes unless and until it is successfully impeached. Thus the proceedings of the Senate as a House of Parliament are not invalidated by the presence of a senator without title”.[i]

Similarly, Isaacs J noted that even if a person had in fact acted as a Senator without being validly elected, “The validity of his public acts as a senator prior to the declaration is, of course, unaffected”.

The 1988 unanimous decision of the High Court in Re Wood [ii] quoted the passage from the judgment of Griffith CJ, Barton and Higgins JJ with approval.

Section 44 of the Constitution lists the grounds on which candidates for Federal Parliament can be disqualified.

With thanks to Associate Professor Matthew Stubbs, Associate Dean (Learning and Teaching) at Adelaide Law School, for his advice on this blog.

[i] (1907) 5 CLR 201, 208 (Griffith CJ, Barton and Higgins JJ)

[ii] (1988) 167 CLR 145