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”

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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?”

Could silent voters be denied a say in the marriage equality survey?

Update – 11 August – 1.50pm The Minister for Finance and Acting Special Minister of State (responsible for the AEC), Mathias Cormann, has tweeted to say that “Our commitment for all Australians on Electoral Roll incl silent electors to have opportunity to have their say in Marriage Law Survey. ABS will make further announcements in relation to this as soon as arrangements have been finalised.”

Update – 11 August – 11.30am – I have been told that people who have contacted the AEC today have been assured that silent electors will be sent surveys; even those who are not registered general postal voters. No particulars on the means by which this will be done – whether through the ABS or the AEC.

Could an estimated 113,000 silent electors, whose addresses do not appear on the electoral roll for personal safety reasons, be denied a say in the proposed Australian Bureau of Statistics (ABS) postal survey on marriage law? Continue reading “Could silent voters be denied a say in the marriage equality survey?”

Just in Time? Malcolm Roberts’ 1974 Application for Citizenship by Notification

The documents behind the Buzzfeed story on how Senator Malcolm Roberts, indicating he was a British subject in his 1974 application for Australian citizenship, suggests a “just in time” application regarding his citizenship status. Roberts, and his father, were among the last to be recognised by a streamlined process intended to provide long standing British subjects with fast, simple recognition of citizenship. Continue reading “Just in Time? Malcolm Roberts’ 1974 Application for Citizenship by Notification”

Section 44: Questions about the timing of a disqualification.

The possibility that the election of Queensland Senator Malcolm Roberts might be voided because he was disqualified by standing while still a British citizen, without having taken sufficient steps by nomination day to renounce that citizenship, has given rise to further questions as to what would occur if a likely successor were also disqualified.

This is complicated by the possibility of the disqualifying circumstances occurring after the 2016 election, but before (or while) the High Court considered how a person might fill a Senate seat vacated by any disqualification of Roberts.

The third placed candidate on the Pauline Hanson’s One Nation (PHON) ticket, Fraser Anning, is reportedly facing bankruptcy proceedings. If he were bankrupt or insolvent, the Constitution would seem to indicate he would be incapable of being chosen or sitting as a Senator. If it were ruled that he too was incapable of being chosen by reason of disqualification, then the likely outcome would be that the fourth member of the PHON ticket, Judy Smith (Pauline Hanson’s sister), would be declared the second PHON Senator for Queensland. Continue reading “Section 44: Questions about the timing of a disqualification.”

Pascall’s Saviour?

Australia’s premier award for criticism, the Geraldine Pascall Prize, is now administered as one of two arts focused awards by the Walkley Foundation, responsible for the major awards in Australian journalism.

It brings to an end a stand alone prize that conferred recognition (and no small amount of cash) on some of Australia’s best and most highly regarded critics and reviewers. It also invites renewed discussion about the value given to arts and cultural criticism in Australia’s media. Continue reading “Pascall’s Saviour?”

Forty Year Ombudsman Tradition Trashed by Turnbull

Yesterday’s announcement that the vacant role of Commonwealth Ombudsman would be filled by the Deputy Secretary of the Department of Immigration and Border Protection (DIBP), Michael Manthorpe, brings to an end a forty year bipartisan tradition of appointments not being directly made from the ranks of frontline departmental management.

While the post was reportedly offered to several departmental heads in the early years of the Hawke Government, every previous appointee since the establishment of the Office in 1977 has held a post in academia, consumer advocacy, legal or judicial administration, or oversight and complaints handling immediately prior to appointment. Continue reading “Forty Year Ombudsman Tradition Trashed by Turnbull”

ABC Presenter Featured Speaker at $85 a Head ALP Branch Dinner

Prominent ABC current affairs presenter and editor, Stan Grant, is the featured speaker at an $85 a head dinner scheduled for April, co-hosted by a branch of the NSW ALP, to honour former Labor leader, H V Evatt.

The speaking engagement has the potential to ignite controversy akin to that caused by former Trade Union Royal Commissioner Dyson Heydon agreeing to deliver a lecture for a Liberal Party event in 2015 to honour Evatt’s contemporary and rival, Sir Garfield Barwick. In the face of widespread criticism, Heydon eventually withdrew from the Lecture, and later ruled against an application that he stand down from the Royal Commission. Continue reading “ABC Presenter Featured Speaker at $85 a Head ALP Branch Dinner”