Challenge likely over Anning candidate's Senate eligibility

The eligibility of the lead ACT Senate candidate for Fraser Anning's Conservative National Party appears certain to be challenged should he win a seat in the upcoming federal election.

Shane Van Duren was sentenced to two years and six months of a suspended prison sentence and 200 hours of community service in May 2017 after an incident where police and RSPCA inspectors were attempting to seize his companion dog after he had freed it from an RSPCA shelter.

After his nomination for an ACT Senate seat, the eligibility of conservative Shane Van Duren is been called into question by legal experts. Photo: Megan Gorrey

After his nomination for an ACT Senate seat, the eligibility of conservative Shane Van Duren is been called into question by legal experts. Photo: Megan Gorrey

Mr Van Duren pleaded guilty to the assault and was convicted.

He believes the two-year-old case isn't relevant to his Senate run. He said he had served his 200 hours of community service with the Returned and Services League and wasn't sure if his suspended sentence was still in place.

He said he hadn't explored if his suspended sentence affected his eligibility to run for the Senate because the question on the Electoral Commission form didn't ask about suspended sentences.

Former Liberal Party candidate Greg Barns, the national criminal justice spokesman for the Australian Lawyers' Alliance, said that Section 44 of the Australian constitution was quite clear on the conditions by which a candidate would be ruled ineligible.

He said that sub-section 2 of Section 44 stipulated that any person who "has been convicted and is under sentence, or subject to be sentenced, for any offence punishable under the law of the Commonwealth or of a State by imprisonment for one year or longer" is incapable of being chosen.

"A person serving a suspended sentence for this term is included within Section 44 and on the face of it, this individual would appear to be disqualified because his sentence is still running," Mr Barns said.

On the face of it, this individual would appear to be disqualified because his sentence is still running

Barrister Greg Barns

Mr Barns said it was "entirely likely" that should Mr Van Duren be elected, he would be challenged shortly thereafter.

He also expressed some surprise that Mr Van Duren had not sought some legal advice before he had lodged his candidacy, as advice given on the nomination papers was clear on this and many other matters.

A spokesman for the Australian Electoral Commission said that it was not within the AEC's power to challenge a candidate's eligibility and accepted that the candidate had conducted the due diligence required for his or her nomination.

A deposit of $2000 is required for each individual candidate for the Senate or the House of Representatives.

The deposit is only refunded if the candidate is elected or receives at least 4 per cent of the formal first preference votes, or is part of the Senate group that receives at least 4 per cent of the first preference votes.

Unsuccessful candidates forfeit their deposit.

Mr Van Duren said that he was running for Mr Anning's party because he supported nationalism.

"The key points of this election are globalism under an agenda of Islamification or nationalism under an agenda of freedom," he said.

Fraser Anning was censured by the Senate earlier this month for the extreme anti-immigration comments he made after the Christchurch massacre.