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”

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.”

Consequences of Disqualification as a Senator on Votes and Payments

[Updated on 6 April 2017, to address the High Court findings in Re Day [No. 2] (2017) as well as other changes in circumstances since the original post].

With the High Court finding that Rod Culleton and Bob Day were each ineligible to contest the 2016 Senate Election, and thus ineligible to be elected and sit in the Senate during the 45th Parliament, and with Day disqualified from sitting as a Senator for several months in the previous Parliament, a number of questions arise as to the consequences of this decisions for their votes while sitting in the Senate, and the recovery of any payments made to them. Continue reading “Consequences of Disqualification as a Senator on Votes and Payments”

Re Webster: Members of Parliament, Pecuniary Interests and Disqualification – A Background

At the heart of the High Court challenge to Bob Day’s qualification to contest the Double Dissolution election of 2016 lies the case of Senator James Webster in 1975. Contentious at the time in the midst of wider political controversy, and thought potentially capable of opening up to scrutiny all manner of contractual arrangements, including residential leases, held between MPs and the Commonwealth, the relevant clause was narrowly interpreted by a single judge of the High Court and benefit of the legal doubt given to the Senator.

Since then, it has been the subject of criticism, and may well be overturned in the course of current proceedings. In its submissions in the current case, the Commonwealth has argued that, while Bob Day would fall foul even if the case were applied, Re Webster was too narrowly decided. Herewith the background to the original case, and its aftermath. Continue reading “Re Webster: Members of Parliament, Pecuniary Interests and Disqualification – A Background”

The Time Philip Ruddock Opposed Double Dipping by Retired MPs

Revelations that fomer Minister and Member of Parliament, Philip Ruddock, has continued to receive his full parliamentary retirement benefits whilst in receipt of payment for his role as the Government’s Special Envoy on Human Rights are at odds with a stance he took early in his parliamentary career.

In Senate Estimates for the Department of Foreign Affairs and Trade yesterday, the Department indicated that Mr Ruddock’s parliamentary pension had not been reduced, as a result of legal advice on the status of his role as a “Special Envoy”. The DFAT officer to which the role reports,  Dr Lachlan Strahan, First Assistant Secretary, Multilateral Policy Division, told the Estimates session that Ruddock had obtained the legal advice on his own initiative. Continue reading “The Time Philip Ruddock Opposed Double Dipping by Retired MPs”

New Rules Net Liberal Party Extra $49,000 For Software Subsidy

After a cap was removed on a controversial public subsidy of the major political parties, 72 Coalition MPs claimed an additional $48,935 in the first half of 2015-16 over and above what could be claimed in previous years.

This was paid to the Liberal owned entity, Parakeelia Pty Ltd, the subject of recent controversy over its practice of funding the Liberal Party by way of public subsidy for electoral management software it developed and owns. Continue reading “New Rules Net Liberal Party Extra $49,000 For Software Subsidy”

Search and Seizure and Parliamentary Privilege

The Parliamentary Privilege questions enlivened by the series of raids on Senator Stephen Conroy’s office, the home of an adviser and the server maintained by the Department of Parliamentary Services, arising from the Australian Federal Police’s investigation into the leak of NBN documents brings to a head a series of questions raised across a number of legislatures in Australia, the UK and the US in the past twenty years.

On the matter being raised in the Senate yesterday, a background paper from the Clerk of the Senate, Dr Rosemary Laing was tabled. It indicates that she is not satisfied with the processes used by the Senate until now to deal with disputes over privilege between Senators and law enforcement. Continue reading “Search and Seizure and Parliamentary Privilege”