20/07/2017 2:29 PM AEST | Updated 20/07/2017 2:33 PM AEST

Again? 'Real' Constitutional Risk Over Likely New Greens Senator

Andrew Bartlett's uni job at the time of #AusVotes2016 could disqualify him.

Robert Shakespeare/Fairfax Media
Andrew Bartlett was employed by the Australian National University's College of Law at the time of standing for election.

CANBERRA -- If the past week's loss of both co-deputy leaders Larissa Waters and Scott Ludlam have not been enough for the reeling Australian Greens, there is now a valid question mark over Waters' likely replacement in the Senate.

And again, it is over a potential breach of Section 44 of the Australian Constitution. Just a different sub paragraph.

The "live issue", according to constitutional law expert George Williams, with the eligibility of former Democrats Leader Andrew Bartlett comes as Tasmanian Greens Senator Nick McKim reveals he is awaiting paperwork from the British Government confirming that he renounced his British citizenship before standing for election.

The declaration of renunciation never came back in 2015 when McKim wrote to the Britain's Home Office to renounce his citizenship, but his office has told HuffPost that the senator did all that he was supposed to do.

The Greens have been scrambling since the surprise loss of Waters on Tuesday (following the equally stunning resignation of Ludlam on Friday) and Andrew Bartlett has been in the box seat for a return to the Senate as the number two on the Greens QLD ticket at the 2016 election.

But, Bartlett was employed by the Australian National University's (ANU) College of Law at the time of standing for election. And, Section 44(iv) of the Constitution bars people from running for federal parliament if you hold "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".

In a short statement, Bartlett said he was eligible.

"It is not correct to assert that a University position is an office of profit under S 44. We've had strong advice to the contrary for some years & people have been elected to Parliament previously without resigning their university position."

Andrew Bartlett

The Greens have also provided a 2013 "industrial memo" from the National Tertiary Education Union (NTEU) which advises federal candidates," the fairly overwhelming weight of opinion is that University staff do not hold an office of profit under the crown, as Universities are not "the crown", and that therefore university staff are not precluded from seeking election."

Two cases were cited. The disqualification of independent Phil Cleary by the High Court in 1992 because he was a Victorian public school teacher and the unchallenged 2002 election of uni employee and Greens candidate, Michael Organ.

However, the NTEU also warns candidates:

"The union is unable to give any absolutely definitive advice on the question of University staff, as the specific issue has never been the subject of judicial consideration."

NTEU 2013 industrial memo

And there's the rub.

Constitutional law expert George Williams has told HuffPost Australia that employment by universities has never been tested by the High Court, and he said it was a "live issue," a "real risk" and a "minefield".

"It is a grey area that as yet we don't have clarity about by the High Court," he said. "It is yet another example of how this section of the Constitution is unsatisfactory and uncertain."

"This is a minefield for candidates with connections in universities, local government and indeed in a range of other areas, which have a relationship to government but clearly also have a level of independence."

Professor Williams said it will be hard for the Senate, when it sits again, not to refer the matter to the High Court after it has dealt with Waters and Ludlam, if the High Court decides, in the Waters matter, to select Bartlett for her spot.

Bartlett could be eligible. It is just not known.

"I have advised many candidates in the past about this issue and my advice has been there is a real risk that their candidacy could be challenged," he told HuffPost Australia.

"If they think they may be in a position to win the seat they would be well advised to ensure that they are not employed by a university at the point they nominate."

Dual citizens Waters and Ludlam ran afoul of section 44(i) of the Constitution that says you can't run for Federal Parliament if you are "under any acknowledgment of allegiance, obedience, or adherence to a foreign power" or if you are "a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power".