The Section 44 soap opera: why more MPs could be in danger of being forced out


H. K. Colebatch, UNSW

One thing we learned from the recent election campaign is that the political crisis over Section 44 of the Constitution has not gone away.

Many candidates in the election had their eligibility to stand for parliament questioned and some were even forced to withdraw from their races.

Despite all the attention given to this matter over the last couple of years, and the various procedures introduced to address it, Section 44 will only continue to be a problem until the parliament steps in to address it.

To do that, we first need to address seven myths about Section 44.

1. Everyone knows their citizenship, they just need to do their paperwork

Section 44 is about more than just citizenship – it covers a variety of restrictions on who can serve in parliament.

For instance, a GP who bulk-bills a patient could be considered to have a “pecuniary interest in an agreement with the Commonwealth.” And a postman or a nurse in a public hospital could be deemed to hold “an office of profit under the Crown.”

On citizenship, the section doesn’t just disqualify dual citizens, it also bars those “entitled” to citizenship elsewhere (even if they haven’t applied for it) and those “entitled to the rights and privileges” of citizenship (basically, the “right of abode”, or being entitled to enter a country and live there).

Such entitlements are not easy to discover and almost impossible to remove, because they’re embedded in foreign legislation.




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2. It doesn’t affect many people

On the contrary, the parliamentary committee investigating the matter estimated half the adult Australian population, or more, could be disqualified by law or impeded in practice from standing for parliament.

In the recent election, we saw one potential candidate withdraw because she was an Australia Post employee and another because she was entitled under Indian law to some privileges of Indian citizenship.

As a result, the Australian parliament becomes even less representative of the Australian people.

3. The constitution framers knew what they were doing

The original text agreed to at the constitutional convention in 1898 simply said anyone who had acquired foreign citizenship by their own act was disqualified from standing for parliament.

The text that eventually became Section 44 was inserted surreptitiously by one of the key architects of the constitution (and Australia’s first prime minister), Edmund Barton, as a drafting amendment. He introduced 400 amendments on the second-to-last day of the convention, but made no mention of this change, and expressly denied there had been any changes to Section 44 apart from a minor one to another subsection.




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4. The High Court has sorted it out

Far from it. Very few cases challenging Section 44 have made it that far, partly because the court has done everything possible to fend them off, including trashing the constitutional provision giving citizens the right to challenge the eligibility of parliamentarians. Politicians have also refused to refer cases to the court unless it’s advantageous to their party.

And when the court has heard a case, it has construed its task so narrowly as to give little guidance to future action on the section. In particular, it has said nothing about the disqualification of those MPs “entitled to the rights and privileges of citizenship” in other countries.

In fact, when Senator Matthew Canavan’s eligibility was challenged because Italian laws had changed to permit citizenship to descendents of native Italians, the High Court noted that the law was fairly generous, but one had to apply. Canavan hadn’t applied, therefore couldn’t be an Italian citizen.

But if he had applied and then received Italian citizenship because he was eligible (as his brother had done), he would have been disqualified by Section 44.

This was all too much for the court to sort out. As a result, it offered no clarity on the large number of MPs whose eligibility hangs on what sorts of “entitlement” would disqualify them.

Senator Matthew Canavan was not disqualified after the High Court ruled his Italian citizenship was ‘potential,’ not actual.
Mick Tsikas/AAP

5. But there are administrative checks now, too

Well, yes, but nobody does anything about them. In 2017, all MPs were asked to fill out a form documenting their ancestry and citizenship, and the responses were then logged in a citizenship register. This showed some 15-20 MPs were entitled to foreign citizenship and a total of 59 had the “right of abode” in the UK, which the High Court has decided is the key to the “right and privilege” of citizenship.

But no action was taken on any of these cases. The register appears as a matter of record only.




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Similarly, although the Australian Electoral Commission is now requiring candidates to complete a similar form, it does not take action against those who refuse to submit it, or leave sections blank. One candidate was referred to the police, but this was clearly a pointless face-saving exercise.

6. We want our MPs to be unequivocally Australian

Having foreign ancestry does not make you un-Australian. Section 44 does nothing to establish the strength of identity or loyalty – it simply prevents an undefined, but potentially very large, slice of the population from standing for parliament.

One case illustrates the ludicrous reach of the present wording.

After Lithuania regained its independence in 1990, it passed a citizenship law that gave people born outside the country to Lithuanian parents the right to citizenship. In 2016, this provision was expanded to cover those with Lithuanian grandparents. As a result, Senator Doug Cameron, whose Scottish burr we are used to hearing on news broadcasts, became eligible for Lithuanian citizenship.

While Cameron could (and did) renounce his British citizenship to qualify for election to the Australian parliament, he cannot renounce his entitlement to Lithuanian citizenship. And while some people have very strong views about Cameron, I have never heard it suggested he was working to a Lithuanian agenda rather than an Australian one.

Senator Doug Cameron was born in Scotland, but his grandparents are from Lithuania – a fact he had to disclose on the new citizenship register.
Mick Tsikas/AAP

7. It’s too hard to change the Constitution

The same thing was said about amending the Marriage Act to permit same-sex couples to marry. The public recognises there’s a problem with Section 44 and it expects the politicians to fix it.

The best shot came with the Joint Standing Committee on Electoral Matters, which recommended adding the words “until the parliament otherwise provides” to Section 44. This would not change the law, just where the law is made.

Instead of disqualifications being defined by the laws in foreign countries, as the High Court has interpreted Section 44, they could be determined by the Australian parliament. This is how qualifications of senators and members are currently decided. It’s also how women got the vote in 1902.

If this proposal was strongly supported by all the parties and clearly explained to the electorate, it would likely pass in the next election.

So where does this leave us?

It all comes down to leadership. Up to now, both the Coalition and Labor have been primarily motivated by partisan advantage: how can we use Section 44 to score a political point?

The Joint Standing Committee showed that with a willingness to collaborate, there is a path forward to solving the problem. The best we can hope for is that after the trauma of the last few years, and the evidence of the continuing decline in support for the main parties, political leaders will see that acting constructively on Section 44 might actually be in the best interests of both parties.The Conversation

H. K. Colebatch, Visiting Professorial Fellow, UNSW

This article is republished from The Conversation under a Creative Commons license. Read the original article.

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Can a senator be expelled from the federal parliament for offensive statements?


Anne Twomey, University of Sydney

In the wake of comments about the Christchurch massacre, members of the public have raised the question of whether a senator can be expelled from the Senate for making offensive statements.

It is now well known that members of parliament can have their seat vacated in the parliament due to their disqualification under section 44 of the Constitution for reasons including dual citizenship, bankruptcy, holding certain government offices or being convicted of offences punishable by imprisonment for one year or longer.

But there is no ground of disqualification for behaviour that brings a House of Parliament into disrepute. This was something left to the house to deal with by way of expulsion.




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What powers do the houses have to expel?

Section 49 of the Commonwealth Constitution provides that until the Commonwealth parliament declares the powers, privileges and immunities of its houses, they shall be those the British House of Commons had at the time of federation (1901).

The House of Commons then had, and continues to have, the power to expel its members. The power was rarely exercised, but was most commonly used when a member was found to have committed a criminal offence or contempt of parliament. Because of the application of section 49 of the Constitution, such a power was also initially conferred upon both houses of the Australian parliament.

The House of Representatives exercised that power in 1920 when it expelled a member of the Labor opposition, Hugh Mahon. He had given a speech at a public meeting that criticised the actions of the British in Ireland and expressed support for an Australian republic.

Prime Minister Billy Hughes (whom Mahon had previously voted to expel from the Labor Party over conscription in 1916), moved to expel Mahon from the House of Representatives on November 11 – a dangerous date for dismissals. He accused Mahon of having made “seditious and disloyal utterances” that were “inconsistent with his oath of allegiance”. The opposition objected, arguing that no action should be taken unless Mahon was tried and convicted by the courts. Mahon was expelled by a vote taken on party lines.

In 2016, a private member’s motion was moved to recognise that his expulsion was unjust and a misuse of the power then invested in the house.

The power of the houses to expel members, as granted by section 49, was subject to the Commonwealth parliament declaring what the powers, privileges and immunities of the houses shall be. This occurred with the enactment of the Parliamentary Privileges Act 1987.

It was enacted as a result of an inquiry by a parliamentary committee, which pointed out the potential for this power to be abused and that as a matter of democratic principle, it was up to voters to decide the composition of the parliament. This is reinforced by sections seven and 24 of the Constitution, which say that the houses of parliament are to be “directly chosen by the people”.

As a consequence, the power to expel was removed from the houses. Section 8 of the Parliamentary Privileges Act 1987 says:

A House does not have power to expel a member from membership of a House.

This means that currently neither house of the Commonwealth parliament has the power to expel one of its members.

Could the position be changed?

Just as the parliament had the legislative power to limit the powers and privileges of its houses, it could legislate to amend or repeal section eight so that a house could, in future, expel one of its members, either on any ground or for limited reasons.

Whether or not this is wise remains doubtful. The reasons given by the parliamentary committee for the removal of this power remain strong. The power to expel is vulnerable to misuse when one political party holds a majority in the house. Equally, there is a good democratic argument that such matters should be left to the voters at election time.

However, expulsion is still an option in other Australian parliaments, such as the NSW parliament. It’s used in circumstances where the member is judged guilty of conduct unworthy of a member of parliament and where the continuing service of the member is likely to bring the house into disrepute.




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It is commonly the case, though, that a finding of illegality, dishonesty or corruption is first made by a court, a royal commission or the Independent Commission Against Corruption before action to expel is taken. The prospect of expulsion is almost always enough to cause the member to resign without expulsion formally occurring. So, actual cases of expulsion remain extremely rare.

Are there any other remedies to deal with objectionable behaviour?

The houses retain powers to suspend members for offences against the house, such as disorderly conduct. But it is doubtful that a house retains powers of suspension in relation to conduct that does not amount to a breach of standing orders or an “offence against the house”. Suspension may therefore not be available in relation to statements made outside the house that do not affect its proceedings.

Instead, the house may choose to censure such comments by way of a formal motion. Such motions are more commonly moved against ministers in relation to government failings. A censure motion is regarded as a serious form of rebuke, but it does not give rise to any further kind of punishment such as a fine or suspension.

The primary remedy for dealing with unacceptable behaviour remains at the ballot box. This is a pertinent reminder to all voters of the importance of being vigilant in the casting of their vote to ensure the people they elect to high office are worthy of fulfilling it.The Conversation

Anne Twomey, Professor of Constitutional Law, University of Sydney

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Australia can do more to attract and keep women in parliament – here are some ideas


Brendan Churchill, University of Melbourne

The resignation of Kelly O’Dwyer, Federal Minister for Women, Jobs and Industrial Relations, tells us what we have known for some time: Australia’s parliament is a hostile workplace for women and working mothers.

O’Dwyer’s desire for a bigger family and more quality time with her young children reflects, in some respects, the challenges ordinary working mothers in Australia face everyday. It also highlights yet another example of the difficulties faced by women in politics.

As Liberal senator Linda Reynolds wrote in an opinion piece: O’Dwyer’s resignation “ …is not simply a gender issue. It is a parent issue”.

But for every Tim Hammond (the federal Labor Member for Perth who quit politics last year for family reasons) there is a Kelly O’Dwyer or a Kate Ellis .

Women by and large are still the primary caregivers in this country regardless of whether they are an MP or senator.




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Institutionally, Australia’s parliament has made significant progress over the past decade to accommodate parents. Parliament House now has childcare services and a breastfeeding room off to the side of both chambers for new mothers.

Breastfeeding mothers can vote by proxy in the House of Representations. And in 2017, former Greens Senator Larissa Waters became the first federal MP to breastfeed in parliament.

But there is still progress to be made. Parliament remains family-unfriendly. Sitting hours often extend well beyond childcare hours and sitting weeks are often scheduled during school holidays.

Fewer options than other working women

These issues affect all working parents but must surely impact heavily on parliamentarians who have to travel from their electorates to Canberra. Ordinary working mothers often opt for part-time work to manage the demands of work and family. This is because we haven’t quite figured out how to help women and families best manage their competing workloads.

An MP or senator does not have the option of working part-time. While women politicians do take maternity leave, a part-time MP or senator might not meet community expectations about politicians and service. We also know women in part-time work often end up feeling more stressed as they take on more domestic work or end up working outside of their set part-time hours.

But the idea of job sharing seems less remote. Historically, job sharing, which involves two people sharing what is normally a full-time role, has been seen as an alternative way for women to stay in the workforce. Some preliminary research in the UK suggests that might be a viable option for politicians. And evidence shows it works at the highest level of business, so this is perhaps one way parliaments can learn from the business community.

However, like all flexible working arrangements, job sharing cannot be seen as a solution or alternative for women alone – swapping the political sphere for the private. Male politicians with children would need to be encouraged to adopt these arrangements should they ever eventuate. And getting men to take up flexible working arrangements is not always successful as evidenced by policymakers’ attempts to get new dads to take up parental leave.




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As we enter the next decade, politicians, political parties and the parliament should consider how best to support working mothers (and fathers).

This must begin with a shift in culture. In her resignation speech, former Liberal now Independent, Julia Banks, stated:

equal representation of men and women in this parliament is an urgent imperative which will create a culture change.

Advances towards equal representation are lopsided in the parliament. While Labor is on track to reach equal representation with almost half of its parliamentarians women, the Coalition’s ratio is only one in five. It’s expected with O’Dwyer’s resignation along with recent announcements by other women, female representation in the Liberal and National parties will be proportionally lower than when John Howard left office in 2007.

Regardless of political persuasion, fewer female MPs can only slow progress towards gender equality.

Tim Hammond’s experience is an example of the toll experienced by fathers in federal parliament, but this is still the exception rather than the rule. Greater female representation will help shift cultural ideas about women and working mothers.

But shifts in ideas about working fathers in parliament are needed too. Images of male politicians working with their children at their side is a rarity saved only for election campaigns.

Like ordinary working women, female politicians need not only supportive workplaces but supportive families. Former Queensland premier Anna Bligh relied on her partner and mother for support during her time in office. However, not every female politician has a Greg Withers or a Clarke Gayford, partner of New Zealand prime minster Jacinda Arden, to care for their children while their partner gives a speech to the United Nations.

Ideas from other nations

Jacinda Arden provides one example of greater flexibility for mothers who are parliamentarians. She has broken up her schedule into three-hour slots so she can breastfeed. But not every woman in parliament has as much control over her schedule as a prime minister.

New Zealand is perhaps leading the pack in making parliaments work for parents. Recently, the Speaker of the New Zealand parliament has sought to make it even more family-friendly with a raft of measures, including the installation of highchairs in the cafe and a playground.




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In Europe, things are also progressive with women politicians in the European Parliament – including most famously Italian MEP Licia Ronzulli – taking their children to parliamentary debates and meetings.

In the US, the number of mothers in congress has doubled following the mid-term elections in 2018, which saw a record number of women run for office. Last year, Tammy Duckworth of Illinois became the first senator to have a baby in office, which necessitated changes to allow a baby on the senate floor.

Only ten women have given birth while in Congress and of those, six in the last 11 years.

The presence of children, especially mothers breastfeeding in parliamentary chambers, continues to be worldwide news, suggesting it’s still a novelty. Japanese local government member, Yuka Ogata, has a number of times been forced to leave the assembly as irritation grows around her demanding more family-friendly policies.

At the press conference announcing O’Dwyer’s resignation, the prime minister said he supported:

[…] all women’s choices. I want women to have more choices and all the independence that comes with that.

But choices are always made in the context of individuals’ lives. This is especially true for women who are working mothers. To ensure they make the choice to enter and stay in parliament we must ensure these issues are addressed.

It’s important parliament be made up of working mothers so policies and laws that affect families and in particular working women are informed by those who experience these challenges.The Conversation

Brendan Churchill, Research Fellow in Sociology, University of Melbourne

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Party leaders need to address federal parliament’s intolerable workplace culture: Phelps


Michelle Grattan, University of Canberra

High-profile activist Kerryn Phelps, who is considering whether to join the battle in the Wentworth byelection, has condemned federal parliament’s toxic political culture and called on all major party leaders to address it.

As the fallout from Liberal MP Julia Banks’ condemnation of bullying continues, Phelps told The Conversation: “Some of the behaviour in the Australian parliament of late would not be tolerated in any other workplace”, saying it seemed to have gotten worse. This made for an unhealthy workplace which was ill-suited to getting the best performances from MPs.

Phelps, a City of Sydney councillor who was very active in the same-sex marriage debate, practices as a GP in the Wentworth electorate, and could be expected to attract a substantial vote if she ran as an independent.

The seat, formerly held by Malcolm Turnbull, who had a strong personal vote, is on a 17.7% margin but the Liberals are worried about a big protest vote.

The fallout from the leadership coup is already being felt there with Turnbull’s son Alex encouraging people to donate to the campaign of Labor candidate Tim Murray.

The younger Turnbull tweeted: “Best bang for the buck you’ll get in political donations in your life. Tight race, tight margin for government, big incremental effect whatever happens. If you want a federal election now this is the means by which to achieve it.”

While the focus in the bullying debate last week was on women, Phelps said some men suffered equally and “don’t perhaps get recognised in terms of the emotional cost [to them].”

She said the “toxic nature of parliament as a workplace” needed to be addressed, and she rejected the message sent by some Liberal players that people should toughen up or, in the words of backbencher Craig Kelly, “roll with the punches”.

If any business leader said “just toughen up”, they wouldn’t be there for long, Phelps said.

She said that a quantitative improvement in the political culture had to be generated by the leaders of the large parties. “You have to have the leaders of the major parties draw a line in the sand,” and say that bad behaviour would not advance people’s careers. At present, the opposite seemed to be the case, she said.

Earlier on Sunday, Labor frontbencher Clare O’Neil said “there’s a level of aggression, of conflict, of egocentrism that dominate parliament house and I think that that is quite hard to handle”, in particular for women.

O’Neil, spokeswoman on financial services, told the ABC her experience as an MP was “that there’s increasingly a culture in Canberra and in parliament house that feels really toxic”.

Attention is coming on the Minister for Women Kelly O’Dwyer, who issued a general statement last week condemning bullying, to take a stronger stand. O’Dwyer is expected to say more this week.

Some current and even former Liberal MPs women are reluctant to speak out for fear of blowback.

Labor has had its own controversy centred on one of its female MPs: Emma Husar has said she will not run again, after allegations of her bullying staff and other misbehaviour. A Labor inquiry upheld some allegations but not others.

Labor’s spokesperson on women, Tanya Plibersek, said that while the way parliament worked was adversarial, debates should be conducted with decency and respect.

“A positive culture is critical, and each one of us has the duty to help foster that both within parties and across the parliament.

“I believe the closer the parliament reflects our community – a more equal representation of women and men, and a greater diversity of backgrounds – the better that culture will be.

“I actually think something that really helps is more people working on issues in a bipartisan way, for example on committees,” Plibersek said.

Meanwhile, Christine Forster, Tony Abbott’s sister, has dropped out of the race for Liberal pre-selection for the Wentworth byelection.

She said in a statement the commentary about her candidacy “has focused on the suggestion that it was a proxy for division within the Liberal party. That is not the case, but to avoid any such perception, I will be standing aside and giving my full support to the successful candidate.”

Forster had not been regarded a frontrunner in the contest, which is considered to be between a former ambassador to Israel, Dave Sharma, and Andrew Bragg, who was briefly acting Liberal federal director.The Conversation

Michelle Grattan, Professorial Fellow, University of Canberra

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Could Section 44 exclude Tony Abbott and Barnaby Joyce from parliament?


File 20180829 86120 19kr3ta.jpg?ixlib=rb 1.1
Tony Abbott is now the prime minister’s Special Envoy for Indigenous Affairs, while Barnaby Joyce is Special Envoy for Drought Assistance and Recovery.
AAP/Mick Tsikas

Luke Beck, Monash University

Tony Abbott and Barnaby Joyce have each accepted job offers from new Prime Minister Scott Morrison to serve as his special envoys.

The prime minister’s offers may have been a clever way to keep these two former leaders busy and put their abilities to use. But these jobs may have inadvertently rendered both Abbott and Joyce disqualified from parliament under section 44 of the Constitution. That section disqualifies any MP who accepts a paid job in government that is not a ministerial position.

The special envoy jobs

Tony Abbott is now the prime minister’s Special Envoy for Indigenous Affairs, whereas Barnaby Joyce is Special Envoy for Drought Assistance and Recovery.

Special envoys are not ministerial positions. Neither Abbott nor Joyce is part of the Morrison ministry. Their roles are to work with the relevant ministers and the prime minister to advance policy in these respective areas. The precise details of what they will be doing are not yet clear.




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Section 44 of the Constitution sets out several grounds on which a politician will be disqualified from membership of parliament. Being a dual citizen is only one of them.

Another ground for disqualification is set out in section 44(iv). That provision disqualifies anyone holding an “office of profit under the Crown”, unless the position is that of a minister.

The special envoy roles look suspiciously like offices of profit under the Crown.

What is an office under the Crown?

There is no doubt the special envoys hold offices under the Crown.

In Re Lambie (No 2) from March this year, the High Court decided that Jacquie Lambie’s successor, who was the Mayor of Devonport in Tasmania, was not disqualified under section 44(iv).

The High Court held that a position is under the Crown if hiring or firing decisions are made by the executive government. Mayors are voted in and out by the people, rather than hired and fired by governments.

The prime minister, who is the effective head of the executive government, appointed Abbott and Joyce to their special envoy roles. The prime minister can also sack Abbott and Joyce as special envoys if he wants.

Positions like Speaker of the House of Representatives, Leader of the Opposition, and Chairperson of a Parliamentary Committee are not “under the Crown”. They are parliamentary positions.

The key issue is whether the special envoy positions are “of profit”.

Is the position of special envoy “of profit”?

It has been reported that Abbott and Joyce were offered remuneration for their special envoy roles.

ABC Radio National Presenter Patricia Karvelas tweeted:

Access to staff does not make a position “of profit”. Nor does covering of work expenses. But a salary, however small, definitely makes a position “of profit”.

On the same day, having already accepted the special envoy job, Tony Abbott told 2GB radio host Ray Hadley that he would not be receiving any pay for his role as Special Envoy. Abbott said: “The other thing I want to say, Ray, is that I certainly don’t expect any extra pay”.

Hadley had not asked Abbott about payment. Abbott simply made the comment off his own bat.

This all suggests that Abbott may have been offered remuneration for the special envoy job, but decided to decline that offer.

The High Court has said that to fall foul of section 44(iv) it does not matter whether a person is actually paid. What matters is “the character of the office”.

In the 1992 case of Sykes v Cleary, the High Court held that Philip Cleary, who had won the federal seat of Wills, was disqualified under section 44(iv). Cleary was a teacher who was on leave without pay at the time of the election.

The High Court decided that it doesn’t matter whether a person is actually receiving payment. What matters is whether payment attaches to the position. Cleary held an office of profit under the Crown even though he was not receiving any payment.




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Chief Justice Anthony Mason and Justices John Toohey and Michael McHugh said:

The taking of leave without pay by a person who holds an office of profit under the Crown does not alter the character of the office which he or she holds. The person remains the holder of an office, notwithstanding that he or she is not in receipt of pay during the period of leave.

Logically, the same reasoning applies to an office-holder who waives their right to payment or declines to take a salary. A person is not saved from disqualification because they are not currently receiving payment.

Abbott and Joyce will be disqualified if, and this is the crux of the issue, remuneration was originally part of the special envoy job offers.

It doesn’t matter if Abbott and Joyce never asked for payment. It doesn’t matter that they declined an offer of payment. And it doesn’t matter that they aren’t actually being paid now.

If a non-ministerial position answers the description of an “office of profit under the Crown” then the holder of that position is disqualified.

Could Abbott and Joyce really be disqualified?

A clear answer is needed to the question of whether Abbott and Joyce were offered payment as part of their special envoy roles. Morrison, Abbott or Joyce could each easily answer that question.

If payment was indeed offered as part of the roles, the only way the issue of disqualification could be decided authoritatively is for the House of Representatives, where the government has a slim majority, to refer Abbott and Joyce to the High Court.

It is unlikely the government will refer Abbott and Joyce to the High Court, and quite likely that the opposition will pursue the issue – and also Peter Dutton’s potential section 44 problem – when parliament resumes in September.

The section 44 saga continues.The Conversation

Luke Beck, Associate Professor of Constitutional Law, Monash University

This article was originally published on The Conversation. Read the original article.

Explainer: is Peter Dutton ineligible to sit in parliament?



File 20180820 30596 1vhs9in.jpg?ixlib=rb 1.1
There is enough in the Dutton case to raise questions about whether disqualification has occurred.
AAP/Lukas Coch

Anne Twomey, University of Sydney

Section 44 of the Constitution has struck down many a politician in the past year – but is it powerful enough to take down the Minister for Home Affairs, Peter Dutton? This time it is not dual citizenship under s44(i) that is at issue. Instead, it is the more obscure s44(v) in the spotlight.

What is section 44(v) about?

Section 44(v) says that any person who “has any direct or indirect pecuniary interest in any agreement with the Public Service of the Commonwealth” is disqualified from sitting as a member of parliament.

Dutton, as recorded in the parliamentary register of interests, is the beneficiary of a discretionary family trust. This trust, through its trustee, apparently owns two childcare centres in Queensland. The allegation is that since July 2, 2018, the trust, through its childcare centres, has agreements with the public service to provide childcare services in exchange for childcare subsidies.

Dutton may argue the childcare centres merely receive the subsidy on behalf of the parents and do not have an agreement with the public service. But if it is found there is such an agreement, it would appear Dutton has a beneficial interest in a trust that has an agreement with the public service, potentially triggering the application of s 44(v).

Last year, in a case concerning Family First senator Bob Day, a majority of the High Court held that the beneficiary of a trust which, via its trustee, is party to an agreement to which section 44(v) refers, has an indirect pecuniary interest in the agreement, and is therefore disqualified from sitting in parliament. If the facts set out above are correct, this would place Dutton into the realm of potential disqualification.

Exceptions for certain types of agreements

The key qualification is the reference to “an agreement to which section 44(v) refers”. Not every agreement with the public service will trigger the application of section 44(v). This is because otherwise ordinary agreements that everyone engages in, such as paying for a passport or a stamp, could cause disqualification from parliament.

In the Day case, Chief Justice Kiefel and Justices Bell and Edelman said there can be “no relevant interest if the agreement in question is one ordinarily made between government and a citizen”. But does an agreement between a childcare centre and the public service fall into that category? It is less ordinary than the purchase of a passport or a stamp.

Justices Gageler and Keane took the view that section 44(v) has no application to agreements entered into by the Commonwealth in the execution of a law of general application enacted by the parliament. As the provision of the childcare subsidy comes under a law of general application, which applies equally to all childcare centres, Dutton would not, on this basis, be disqualified from parliament. But two judges do not make a majority of the Court.




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Two other judges, Justices Nettle and Gordon, rejected the attempt to exclude agreements authorised by statutes of general application. In their view, the issue was whether the direct or indirect pecuniary interest in an agreement could conceivably influence a parliamentarian to prefer their private interests over their public duty.

A similar view was taken by the other three judges, Chief Justice Kiefel and Justices Bell and Edelman, who considered that one of the purposes of s44(v) was to ensure that parliamentarians do not seek to benefit from agreements with the public service or “put themselves in a position where their duty to the people they represent and their personal interests may conflict”.

In the case of Dutton, there is no suggestion of any attempt to use political influence or that the arrangements with the two childcare centres are any different from those applying elsewhere. It is therefore different from the Day case, where Day had asked the government to move his electorate office to a particular building, giving rise to an indirect pecuniary interest in the rent.

But it is still possible to argue that Dutton may benefit financially from these agreements with the public service. Is this enough to establish the kind of potential conflict of interest – where a person might prefer their private interests over their public duty – that concerned the High Court in the Day case?




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This is a matter of judgment for the High Court. It would depend on how strictly it chose to apply the provision. But we do know from recent experience that the High Court has been particularly strict in applying section 44. So even though this case falls within the grey border-area of section 44, it is enough to raise a substantial concern that disqualification has occurred.

What are the consequences of disqualification?

Disqualification is not just an issue prior to election. It can arise at any time within a member’s term in parliament. Section 45 of the Constitution says that upon a senator or member of the House of Representatives becoming subject to a disqualifying disability in section 44, “his place shall thereupon become vacant”. This means that disqualification is automatic at the moment that a disqualifying agreement with the public service is made.

Let’s assume for a moment that an agreement that triggered the application of section 44(v) came into effect from July 2, 2018. That would mean Dutton’s seat was automatically vacated at that time (although to be sure this had happened, a Court judgment would be needed).

Section 64 of the Constitution also states that no minister shall hold office for longer than three months unless he or she becomes a senator or a member of the House of Representatives. That means Dutton could remain validly a minister for three months from July 2. After that, if he was still not a valid member of parliament, he would cease to be a minister.

This would have consequences for the validity of any decision he made as a minister from that point on. It also raises another difficult question in whether or not the “de facto officer” doctrine would apply to support the effectiveness of those decisions.

Given that as Minister for Home Affairs and Minister for Immigration and Border Protection, Dutton makes many decisions that affect the lives of many people, his possible disqualification from parliament opens up a Pandora’s Box of litigation possibilities.

How to fix the problem?

First, the matter could be referred by the House of Representatives to the High Court, as the Court of Disputed Returns, to determine, as occurred in relation to Barnaby Joyce. The benefit of doing so would be to clarify whether such interests give rise to disqualification. But the disadvantage is that it would take some time to get a judgment, leading to ongoing uncertainty.

Second, Dutton could terminate his indirect pecuniary interest in the agreement, resign his seat and be re-elected in a byelection. This would resolve the matter more quickly, but it is unlikely that the government would wish to hold such a by-election at this time.

Third, Dutton could terminate his indirect pecuniary interest, and an election could be called later this year. This would avoid or reduce any period in which he was performing the duties of a minister while possibly invalidly holding that office.

Fourth, Dutton could resign as a minister once the three months expires, so that there are no issues of validity concerning his ministerial decisions, but remain in parliament as long as the House decided not to refer him.




Read more:
If High Court decides against ministers with dual citizenship, could their decisions in office be challenged?


Finally, the government could ignore the problem and tough it out, by not acting until an election was held next year, but risk a tsunami of litigation challenging the minister’s decisions.

None of these options is likely to be particularly palatable to the government, but nothing about section 44 has given the government great joy. However, it is another salient reminder of the importance of taking care to obey the terms of the Constitution.

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The Conversation

All MPs with family trusts need to be as vigilant about the agreements entered into by the trustee on behalf of those trusts as they should be about their citizenship status.

Anne Twomey, Professor of Constitutional Law, University of Sydney

This article was originally published on The Conversation. Read the original article.

Think the dual citizenship saga does not affect state parliamentarians? It might be time to think again



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It has been widely assumed that any dual citizenship problems are confined to the federal parliament. But that may need a rethink.
Shutterstock

Lorraine Finlay

Over the past year, we have seen 15 federal parliamentarians leave the Australian parliament because of dual citizenship.

Under Section 44(i) of the Australian Constitution – which has been given a strict interpretation by the High Court of Australia in recent cases – a person is not eligible to nominate for, or be elected to, the federal parliament if they are a dual citizen. The removal of such a large number of parliamentarians in such a short space of time is unprecedented.




Read more:
Parliamentary report recommends referendum to solve the dual citizenship saga: Here’s why it won’t happen


Throughout this controversy, it has been assumed that any dual citizenship problems are confined to the federal parliament. Certainly, it is widely acknowledged that state constitutions do not contain the same general prohibition of dual citizenship, and that dual citizens are at least initially eligible to be elected to state parliaments.

Unfortunately, the analysis generally stops at this point. There has been little consideration given to the important follow-up question of whether there are any other disqualification provisions that might affect any dual citizens sitting in our state parliaments.

An examination of state constitutions (and relevant electoral laws) reveals that while a dual citizen is eligible to be elected, this citizenship status may subsequently put them at risk of disqualification if they engage with that foreign citizenship while serving in the parliament.

In particular, in New South Wales, Queensland, Western Australia and Tasmania, the state constitutions, or relevant electoral laws, provide that a parliamentary seat will become vacant if a member commits any act that acknowledges allegiance to any foreign power.

This disqualification does not apply in Victoria, the ACT or the Northern Territory, and in South Australia it has been expressly limited to make it clear it doesn’t apply in particular circumstances.

Clearly, these state provisions are substantially different from the dual citizenship prohibition at the national level. A dual citizen is eligible to be elected as a state member of parliament, and will only be disqualified if there is a positive action taken by them that acknowledges a foreign allegiance.

And that’s the pertinent question: what exactly constitutes an “acknowledgement of allegiance”?

A plain reading of this phrase would seem to suggest that any positive act that seeks to exercise any right arising from citizenship would be disqualifying. In essence, a person who seeks to rely on their foreign citizenship in some way (however trivial) is making an acknowledgement of that foreign allegiance. Some obvious examples would be travelling on a foreign passport, or even renewing a foreign passport.

If a state MP from NSW, Queensland, WA or Tasmania did either of these things, they would appear to be in breach of the state constitutional requirements, resulting in their disqualification from parliament.

This issue has been been flagged as a potential problem in the past. For example, leading constitutional expert Professor Gerard Carney suggested almost 20 years ago that if an elected state member

… subsequently acts to affirm the foreign citizenship, such as by renewing or applying for a foreign passport, disqualification will be incurred.

The question was also considered by the NSW Parliamentary Joint Committee on the ICAC, which recommended repealing this grounds for disqualification back in 1998.

This broad interpretation is further reinforced by the fact that South Australia saw a need back in 1994 to insert a qualifying provision into its state constitution to provide that members would not be disqualified simply because they acquired or used a foreign passport.

The fact that such a qualification was thought necessary highlights that acquiring or using a foreign passport will ordinarily fall into the category of being an “acknowledgement of allegiance”.




Read more:
Dual citizenship debacle claims five more MPs – and sounds a stern warning for future parliamentarians


It is important to note these issues have never been tested before the state courts, and there is no particular evidence to suggest any current state parliamentarians are in breach.

It is also worth noting that some jurisdictions – notably Queensland – have provisions that allow parliament to resolve to disregard a “trivial” disqualifying event.

But given we are having a national conversation about dual citizenship and the Australian Constitution, it seems an opportune time to consider the constitutional impact of dual citizenship at the state level as well. Otherwise, we may find we are still left with a constitutional cloud hanging over a number of state parliaments.

At the very least, the affected state parliaments should introduce a citizenship register like the one introduced last year by the federal parliament. Requiring citizenship information be disclosed is a necessary first step to reassure the public that the dual citizenship controversy will not expand to disqualify any of our state parliamentarians.

When the prime minister referred the question of Section 44 to the Joint Standing Committee on Electoral Matters, he did so on the basis that:

Australians must be assured that all members of the Australian Parliament are constitutionally eligible to serve.

The ConversationThe same principle must also apply to our state parliaments.

Lorraine Finlay, Lecturer in Law

This article was originally published on The Conversation. Read the original article.

View from The Hill: Parliament should care about its reputation even if Leyonhjelm doesn’t value his


Michelle Grattan, University of Canberra

If David Leyonhjelm hasn’t apologised to Sarah Hanson-Young by the time parliament resumes next month, the Senate should tell him to do so.

The recalcitrant Liberal Democrat senator might tell his upper house colleagues to go jump, but the Senate needs to take a stand for the sake of its own reputation.

The outraged Greens have already flagged they’ll move a censure over Leyonhjelm’s smearing of their senator.

This matter goes beyond the actual stoush between the two. It raises the issue of when parliament should call out unacceptable behaviour by its members. It has also triggered questions about the media’s role.

Let’s go back to the start. Last Thursday Hanson-Young told the Senate that during a motion relating to violence against women, “senator Leyonhjelm yelled an offensive and sexist slur at me from across the chamber.

“After the vote on the motion was complete, I walked over to the senator and confronted him directly. I asked whether I had heard him correctly. He confirmed that he had yelled, ‘You should stop shagging men, Sarah.’

“Shocked, I told him that he was a creep. His reply was to tell me to ‘f… off’,” she said.

Earlier, Greens leader Richard Di Natale had approached Senate president Scott Ryan about the incident. Ryan spoke to Leyonhjelm. Leyonhjelm wouldn’t apologise.

Subsequently, Leyonhjelm gave his version in a media statement, saying during the debate Hanson-Young had interjected “something along the lines of all men being rapists. [She says her interjection was ‘putting more tasers on the streets would not make women more safe from men’].

“I responded by suggesting that if this were the case she should stop shagging men.”

Adding more provocation, Leyonhjelm said in his statement that while not prepared to apologise “I am prepared to rephrase my comments. I strongly urge senator Hanson-Young to continue shagging men as she pleases.”

The incident has blown up especially because of what followed at the weekend. Leyonhjelm was interviewed on Sky and on 3AW on Sunday morning. On each program he cast a particular slur on Hanson-Young’s reputation.

On 3AW he was challenged by the presenters. On Sky’s Outsiders it was a different story. He fitted the vibe of a program, that stretches to breaking point the limits of the permissible. A strap line was put up of his words, “SARAH HANSON-YOUNG IS KNOWN FOR LIKING MEN THE RUMOURS ABOUT HER IN PARLIAMENT ARE WELL KNOWN”.

Then, all hell broke loose.

Within hours Sky apologised to Hanson-Young for “broadcasting appalling comments … and for highlighting them in an on-screen strap”. It said a producer had been suspended, ahead of an internal investigation.

Multiple Sky presenters distanced themselves in tweets. Hanson-Young announced on Monday that she was seeking legal advice. Letters have been sent to Sky, 3AW and Leyonhjelm. She could only sue in relation to what happened outside parliament.

Ryan – who did his best on the day – has explained that he doesn’t have power to force an apology.

He said on twitter on Friday: “As the comments were not part of the formal proceedings of the Senate, they are not recorded in Hansard and therefore I have no authority to require a withdrawal, nor do I have the power to demand an apology from any senator or apply a sanction such as suspension.”

Leyonhjelm, who is railing against misandry (hatred of men) told Fairfax Media it would be easier to apologise but that would be “insincere… because I don’t think I have anything to apologise for”.

If Leyonhjelm really believes that, he is totally out of touch with reasonable standards of behaviour, let alone how ordinary people think their representatives should conduct themselves, whatever their disagreements.

His conduct is at the extreme end of the discourteous, sometimes boorish, discourse that too often is characterising political exchanges. And politicians then wonder why so many people are angry at them.

As for Sky, its response has been less than convincing – some might say it is hiding behind a petticoat.

Di Natale opined that Sky’s “apology rings hollow when the man who made the offensive comments goes unpunished, the male producers who booked him go unpunished, the male executives who set the tone and pay their salaries go unpunished and the only one held accountable is a junior producer who also happens to be a female member of staff.”

Suspending a producer, over the strap line, is tokenism. The fact the strap line “highlighted” what was said is hardly the point. Leyonhjelm himself said on Monday “the producer was not responsible for my comments” and pointed to Sky fears about losing sponsorship.

Forget the producer – wasn’t it for the the hosts, Rowan Dean and Ross Cameron, to challenge, or stop, Leyonhjelm? Yet Cameron wound up the segment with the words, “senator David Leyonhjelm, we appreciate your advocacy of the individual to be defended against the sludge of the collective”. (Later in the program – presumably after someone twigged – Dean started the damage control, saying Leyonhjelm’s views “are not the views of Sky News”.)

There was not a word about the presenters in the Sky apology – which was not issued in anyone’s name.

As for an internal investigation, is that needed? Aren’t things pretty obvious? Leyonhjelm was invited on to be controversial. He did exactly what was wanted but when it didn’t work out too well, Sky failed to confront the real issue for the network – a low rent program.

The ConversationCameron and Dean on Monday night admitted that a line had been crossed and they disassociated “ourselves from the use of unverified rumour and innuendo”. Pity they didn’t see the line when Leyonhjelm crossed it in their plain sight.

Michelle Grattan, Professorial Fellow, University of Canberra

This article was originally published on The Conversation. Read the original article.

Parliamentary report recommends referendum to solve the dual citizenship saga: Here’s why it won’t happen


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The dual citizenship saga that has rocked the parliament in recent months is unlikely to end any time soon.
Shutterstock

Lorraine Finlay, Murdoch University

The release of the report by the Joint Standing Committee on Electoral Matters (JSCEM) into section 44 of the Australian Constitution is the latest chapter in the long-running dual citizenship saga. The committee was asked to consider the impact of section 44 and options for reform.

While the report emphasises it is for the Australian people to decide on the appropriate qualifications of their elected representatives, its very title – Excluded: The impact of section 44 on Australian democracy – is a clue to the final view adopted by the majority of JSCEM.

Is a referendum the answer?

The key recommendation of JSCEM is that there should be a referendum proposing either that sections 44 and 45 of the Constitution are repealed, or that the words “until the Parliament otherwise provides” be inserted into those sections.




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The majority report states that the problems caused by section 44 are “wide-ranging” and “have significant and detrimental implications” for Australia’s democracy.

If either of the recommended referendum questions were passed, the effect would be to remove the disqualification criteria from the Constitution and instead leave it to the parliament to enact laws governing this area. This would supposedly allow for disqualification laws that better reflect modern community standards.

There are several practical problems with this, and that is without considering the underlying substantive question of whether section 44 should actually be changed.

The first problem is that it is highly unlikely a referendum would succeed, a point acknowledged by JSCEM. To succeed, a referendum question must be approved by not only a majority of voters across the country, but also a majority of voters in a majority of states. That means a referendum can be defeated with only 19.8% of Australians (being a majority of voters in each of the four smallest states) voting no.

It is highly unlikely that the Australian people would vote “yes” in a referendum that simply asks them to repeal section 44 – which is precisely what JSCEM has recommended. That would not only mean voting “yes” to allowing dual citizens to be elected (itself a controversial proposition), but would also allow individuals to be elected where they have been convicted of treason, are under sentence for a serious crime, or have a financial conflict of interest.

To be fair, JSCEM goes on to recommend that if the referendum passes, the parliament should enact laws to address matters of qualification and disqualification. Any such laws would most likely ensure that many of the circumstances described above would still result in disqualification.

But the difficulty with this is two-fold. The first is that – rightly or wrongly – many Australians blame our politicians for the problems with section 44. The idea they should put those same politicians in charge of deciding what disqualifications should apply to politicians in the future is unlikely to be met with great enthusiasm.

The second difficulty is that JSCEM is asking us to consider constitutional change in a vacuum. How can the Australian people judge whether or not to vote for repealing section 44 without knowing what, if anything, will replace it?

The committee suggests the removal or amendment of section 44 is a “necessary prerequisite” to a public debate on what constitutes appropriate parliamentary disqualifications.

I would suggest the opposite is true. A public debate on what constitutes appropriate parliamentary disqualifications is a necessary prerequisite to any referendum suggesting the removal or amendment of section 44.

In any event, the question of a referendum appears to be academic, with the government ruling out this option almost as soon as the JSCEM report was released.

The minority report

It is somewhat surprising that with recent polls suggesting a majority of Australians support the dual citizenship disqualification, only one committee member reflected this view and concluded constitutional change was not required.




Read more:
Dual citizenship debacle claims five more MPs – and sounds a stern warning for future parliamentarians


In his minority report, Liberal Ben Morton stated “there has been no compelling argument” to remove the dual citizenship disqualification. He also confirmed he would campaign against any constitutional change attempting to remove this requirement.

This provides further insight into why a referendum will not occur. A government holding a one-seat majority simply cannot risk the distraction and destabilisation of a constitutional referendum that would divide its own members.

Other reform options?

Despite this, majority report did go on to recommend a number of practical strategies to “mitigate the impact of section 44” if constitutional change is not pursued.

These include the development of online self-assessment tools, additional education and support for candidates, formalising the parliamentary referral process, and working with foreign governments to streamline citizenship renunciations.

These are mostly sensible recommendations that will encourage greater compliance with the existing constitutional provisions. Given it is highly unlikely a referendum will happen, they are also the most important in practical terms.

The JSCEM report provides a number of practical recommendations to improve compliance with section 44. But it also confirms there is no easy fix.

The ConversationInstead, it looks as though the dual citizenship saga still has a long way to go.

Lorraine Finlay, Lecturer in Law, Murdoch University

This article was originally published on The Conversation. Read the original article.

Early byelection test for Shorten after David Feeney quits parliament


Michelle Grattan, University of Canberra

Labor MP David Feeney has pre-empted a High Court decision on his citizenship, quitting parliament and triggering a byelection in the Victorian seat of Batman.

Labor fears it will lose the seat to the Greens in a contest that will be a major distraction for Opposition Leader Bill Shorten in the early part of the year. In 2016, Feeney held Batman against the Greens only 51-49% in two-candidate terms after a big swing against him.

Feeney, whose position was referred to the High Court late last year, confirmed on Thursday that he still could not produce the paperwork to demonstrate he had renounced British citizenship, which he claimed to have done in 2007, ahead of entering the Senate. He won his house seat in 2013.

“I have taken legal advice indicating that the material that has been located to date is insufficient to satisfy the High Court that I did, indeed, renounce my rights ten years ago. I am unable to disprove that I am a dual citizen,” he said in a statement to a news conference in Melbourne, at which he did not take questions.

The court’s deadline for Feeney to produce documents was 4pm Thursday – just an hour after he announced his resignation.

Feeney is not recontesting the seat. “The Labor Party I love deserve a candidate that is able to give the months and the years ahead 150% of their effort, their commitment and their passion. … I don’t believe I’m able to offer this. That tells me that it’s time for me to stand aside for a Labor candidate that can and will,” he said.

Labor sources have said for weeks that he would not be the candidate in a by-election, believing he would further reduce the chance of holding the seat.

It is speculated that ACTU president Ged Kearney will be Labor’s candidate in the byelection. She had no comment on Thursday. Kearney is already preselected for the seat of Brunswick for the Victorian election later this year.

Kearney is left-aligned, and under Victorian factional arrangements Batman goes to the right. But to maximise its chances in the seat, the party needs to put up someone who will appeal to voters inclined to go to the Greens.

The Greens candidate in the byelection, which is likely to be held in March, is Alex Bhathal, a social worker, who has contested the seat several times before.

Greens leader Richard Di Natale told a news conference: “It stinks that [Feeney] has decided to resign right now. What has changed between the parliamentary year last year and his decision to resign at this time?

“Here we have David Feeney, who has known all along he hasn’t got the paperwork to demonstrate he did the right thing to make sure he’s not a dual citizen, sit on that, receive a salary. And now at a minute to midnight as he’s about to have to argue his case in court, he resigns.”

Di Natale said issues in the byelection would include the proposed Adani coal mine in Queensland, refugees, electoral and donation reform, and climate change.

He predicted a Labor shift on the Adani mine. “Expect to see a backflip coming soon because they know the electors of Batman don’t want to see that mine being built.” This week Shorten was cool on Adani when questioned at the National Press Club.

The Liberals are not planning to run in the seat.

Shorten said in a statement that Feeney’s “decision is the right one and spares the valuable time and resources of the High Court”.

“Labor will put forward a strong candidate at the upcoming Batman byelection, who’ll stand up for the things that matter to Australians: protecting penalty rates and local jobs, protecting Medicare and schools, keeping taxes lower for ordinary people, and building a strong economy that delivers for all,” Shorten said.

*Update: *
Late on Thursday afternoon, Shorten was having talks with Kearney in his office.

The Conversation

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Michelle Grattan, Professorial Fellow, University of Canberra

This article was originally published on The Conversation. Read the original article.