Section 44: Is elected local government office an “office of profit under the Crown”?

The section 44 juggernaut just keeps rolling. The next substantive question likely to come before the court, as a consequence of Jacqui Lambie’s disqualification on dual citizenship grounds, is whether her likely replacement, Devonport mayor, Steve Martin, is himself disqualified, for holding an “office of profit under the Crown”, with respect to his office in local government. Martin maintains that he is on solid ground, citing advice given by the then Clerk of the Senate ahead of the 2016 election.

Indeed, history suggests he has a strong case. Continue reading “Section 44: Is elected local government office an “office of profit under the Crown”?”

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How the WA Greens conducted a pre-selection for the wrong Senator

A question barely considered in the ongoing section 44 crisis is what would be the outcome of the filling of places for which Senators were disqualified where they held a six year term, rather than a three year term, following last year’s Double Dissolution election. Would any of the new Senators, elected after a special recount, be entitled to a seat that would not see them go to re-election until 2021-22?

It seems this question has not even considered by the WA Greens, who put their newest Senator, Jordon Steele-John, through a fresh pre-selection at the weekend, even though the highly likely outcome of the High Court’s ruling on him replacing Scott Ludlam is that he now doesn’t have to face voters for up to five years. Continue reading “How the WA Greens conducted a pre-selection for the wrong Senator”

Cut and Paste: One Nation Senator’s “Ethanol” Speech on Marriage Equality Bill

Observers of the Senate debate on the marriage equality were left puzzled and bemused in equal measure yesterday when Pauline Hanson One Nation Senator for NSW, Brian Burston, made a comparison between water and ethanol to argue against marriage equality.

Burston, now the second most senior PHON Senator after the departure of Malcolm Roberts, has a relatively low profile, but his party biography touts his background in trades and higher education, culminating in a four year stint at Newcastle University.

Having gone over Burston’s speech – with, if not a fine-tooth comb, then a hair brush with big bristles – I’d say he’d find himself in some difficulty if his contribution was measured against any academic integrity policy.

Just about every segment of his speech – including the notorious water/ethanol comparison – was lifted word for word or cribbed without attribution from a handful of sources. Continue reading “Cut and Paste: One Nation Senator’s “Ethanol” Speech on Marriage Equality Bill”

Membership of Political Parties in NSW: 2014 – 2017

As part of the electoral disclosure regime in NSW, registered political parties are required to disclose funds raised from membership fees and subscriptions.

The following sets out the membership numbers for the years 2014-17 reported to the NSW Electoral Commission by each party represented in the NSW Parliament since 2015. Continue reading “Membership of Political Parties in NSW: 2014 – 2017”

Section 44: Would a student loan from the Commonwealth prove grounds for disqualification?

Could the Commonwealth HELP loan scheme, that assists the vast majority of students to undertake tertiary or further education, give rise to yet another ground for disqualification under section 44 of the Constitution, which has seen 10 MPs and Senators depart the Parliament since the 2016 election, another candidate miss out on taking up a Senate seat, and a growing cloud over many more?

If it does, this might adversely affect the position of the newly elected Greens Senator for Western Australia, Jordon Steele-John, who, before taking up his seat this week, was undertaking a degree in politics by distance education at Macquarie University?

If this were found to be an issue, it would also affect the future nomination and election of students and recent graduates with student loans owing to the Commonwealth. While few students are in the box seat for winning an election, some run as minor party candidates, for the experience or to “fly” a party’s “banner” in seats where their prospects are slim. Continue reading “Section 44: Would a student loan from the Commonwealth prove grounds for disqualification?”

Can Hollie Hughes Get Past the High Court’s “Brutal Literalism”?

“[the vacancy caused by Robert Wood’s disqualification] can be filled by completing the election after a recount of the ballot papers” (Re Wood, 1988)

“… s 44(i) applies until the completion of the electoral process” (Re Canavan & Ors, 2017)

With those words delivered separately across nearly thirty years, the High Court has possibly put paid to Hollie Hughes’ hopes of becoming a Senator for NSW. Continue reading “Can Hollie Hughes Get Past the High Court’s “Brutal Literalism”?”

When a Royal Commission Was the Answer to Section 44 Cloud Over MPs

In 1975, faced with an uncertain legal position, and mounting claims and counter-claims of breaches, the Government, acting on an Opposition proposal, made moves to establish a Royal Commission to audit MPs’ compliance with the Constitutional provisions governing disqualification from contesting elections and sitting in Parliament.

Had it proceeded, the Royal Commission would have effectively been tasked with auditing the pecuniary interests of Members of Parliament to enable references of doubtful matters to the Court of Disputed Returns. It would have been further tasked with inquiring into the “present day” appropriateness of all of the disqualifications in sections 44 and 45.

The Royal Commission was ultimately frustrated initially by the unwillingness of suitable judges to take part and then rendered unnecessary by the decision of the High Court in Re Webster in June 1975, which narrowly defined the scope of the ban on having a pecuniary interest in an agreement with the Commonwealth. Continue reading “When a Royal Commission Was the Answer to Section 44 Cloud Over MPs”

Section 44: The Cloud Gets Thicker, With An “Office of Profit” Now In The Mix

The cloud hanging over Parliament from the spate of section 44 cases is further complicated by a scenario thrown up by the likely referral of NSW Senator Fiona Nash to the Court of Disputed Return over her possible status as a dual citizen.

Furthermore, at the directions hearing today for the first citizenship five matters referred to the High Court, Chief Justice Susan Kiefel asked the parties to consider what remedies might be appropriate with the passage of time since the last election, given that “we are not in a circumstance where we are close to an election having been held.”

This suggests argument over whether the effluxion of time might require a different solution (such as a re-run of the entire Senate election for an affected State) to the previously used method of recounting the Senate ballots as if the disqualified candidate were not present. Continue reading “Section 44: The Cloud Gets Thicker, With An “Office of Profit” Now In The Mix”

Are They On? Has the AEC got it wrong on 16 and 17 year olds being entitled to a say in marriage equality survey?

Update: 17 August 2017  – Without conceding the argument, yesterday the Minister for Finance issued a statement and amended direction. For abundance of clarity and avoidance of doubt, the amended direction limits the postal survey to those 18 years and over at the end of 24 August.

The statement and direction followed the validation of the arguments put forward in this piece by a range of respected constitutional and electoral law academics.

 

The question of whether 16 and 17 year olds were entitled to be included in the ABS marriage equality postal survey was raised in this blog, and on Twitter, most significantly by Chris Gentle

On Friday afternoon, the Australian Electoral Commission (AEC) issued a statement to dismiss this possibility. Continue reading “Are They On? Has the AEC got it wrong on 16 and 17 year olds being entitled to a say in marriage equality survey?”

Could 16 and 17 year olds have a say in the marriage law postal survey?

Update – 11 August – 6.05pm The Minister for Finance and Acting Special Minister of State, Mathias Cormann, has given statements to journalists pursuing this issue. It echoes (but more concisely) the advice of the AEC that 16 and 17 year olds are not on the roll, and so will not be able to take part in the survey.

Update – 11 August – 5.45pm The Australian Electoral Commission has tweeted to say that speculation that 16 and 17 year olds would be allowed to take part in the survey is incorrect. They refer to the practice of  only “provisionally” enrolling 16 and 17 years. I’d argue that the provisions of the Act set out below has the effect of enrolling 16 and 17 year olds, but prevents them from voting until they turn 18.

The argument can be easily resolved by an amended or new Treasurer’s Direction to the ABS.

But as it stands at the moment, I don’t think it’s as clear cut as the AEC makes it to be in their statement.

 

Could over 47, 000 16 and 17 year olds who have made an application to be on the Electoral Roll, to have practical effect when they turn 18, be entitled to a say in the ABS marriage law survey?

While 16 and 17 year olds are barred from voting, they may currently make a claim to be on the electoral roll, and would be considered to be on the roll, other than for the purpose of an election. Continue reading “Could 16 and 17 year olds have a say in the marriage law postal survey?”