By Kyran O’Dwyer
What is it with these self-opinionated, privileged fools and their pathetic ‘minders’ (the mainstream media (MSM))? For more than a year now, we have had a ridiculous ‘discussion’ based on a very shallow premise. We are, apparently, in the midst of a ‘Constitutional Crisis’ because applicants wanting to represent us are stupid. They don’t understand or comprehend basic questions, even when the Australian Electoral Commission (AEC) spells it out for them. The subject has gone off the boil since the two recent by-elections but it will, inevitably, resurface when the next crop of miscreants make their appearance and the legitimacy of those not referred is questioned.
Apparently, their stupidity is exacerbated by a party system that does what no average Australian would do. Trust an aspiring politician to tell the truth or exercise due diligence. We sure as shit don’t expect it of them when they get elected.
And this is a crisis?
What absolute garbage.
The Constitution remains largely unchanged since its inception. Sect 44 has not been altered by so much as a comma since its inception. As a matter of fact and record, this internetty thingy has made it easier, not harder, than ever before to ‘check things out’. Particularly such difficult things as where your parents were born, in the off chance you made it to adulthood without ever knowing. How the feck is that a crisis?
The only crisis on display in Australia at the moment is that we have the most appalling pack of miscreants occupying seats in our Federal Parliament (for which they are obscenely compensated, given their competence, or lack thereof) and that they are willfully aided and abetted by a media preoccupied with a distraction of ‘who is worse than who’.
Anyone nominating for a seat in the Federal Parliament has to make a declaration including, but not limited to, the fact that they are not a dual citizen. The bar is not set particularly high in this regard. The precedents from 1992 and 1999 were sufficient to enable the AEC to modify and refine the handbook for candidates, which they have done regularly. There is an excellent run-down on the recent history of this farce on the RMIT/ABC Fact Check site which is worth a look in its entirety. It details the two previous cases. More clarity has been added by the recent cases which should make future adjudication easier. On the most recent decision, there is this;
“The High Court apparently aimed for an outcome that gave certainty and stability.
Some key points:
- The key is the date of nomination. All reasonable steps to renounce other citizenship have to be taken by that date.
- Ignorance is no excuse: a person will be caught by section 44(i) even if they were unaware they had dual citizenship. The court said:
“[T]o accept that proof of knowledge of the foreign citizenship is a condition of the disqualifying effect of s 44(i) would be inimical to the stability of representative government.
“Stability requires certainty as to whether, as from the date of nomination, a candidate for election is indeed capable of being chosen to serve, and of serving, in the Commonwealth Parliament.”
- A person does not need to have sought out foreign citizenship. The court rejected the view of former Justice William Deane in Sykes v Cleary that section 44(i) should be limited to cases where the “relevant status, rights or privileges have been sought, accepted, asserted or acquiesced in by the person concerned”.
It said “the approach taken by Deane J draws no support from the text and structure of section 44”.
- A candidate needs to go to the effort of finding out their citizenship status. The court said:
“[W]hile it may be said that it is harsh to apply s 44(i) to disqualify a candidate born in Australia who has never had occasion to consider himself or herself as other than an Australian citizen and exclusively an Australian citizen, nomination for election is manifestly an occasion for serious reflection on this question; the nomination form for candidates for both the Senate and the House of Representatives requires candidates to declare that they are not rendered ineligible by s44…
“In the nature of things, those facts must always have been knowable.”
“A candidate need show no greater diligence in relation to the timely discovery of those facts than the person who has successfully, albeit belatedly, brought them to the attention of the Parliament.”
- Whether a person is a citizen of foreign country is “as a general rule, answered by reference to the law of that country“.
- All reasonable steps have to be taken under the relevant foreign law — it is not enough to make a “reasonable effort”.
So, why would I, or anyone else, feel exasperated by these fools and their minders?
In all of the conversations about this crisis, there has been feck all discussion about the process. Shouldn’t we be asking how do we make aspiring liars more accountable, rather than less accountable? The current conversation is nothing more than an exercise in excusing their stupidity and reducing their accountability.
And, just as importantly, what penalties should be either enforced or imposed?
As best as I can find out, when a candidate completes their declaration, there is very limited access to it or any disclosures contained therein in public forums. Notwithstanding this, the process to dispute the content is restricted to a 40 day window and the dispute must come from a voter in the relevant electorate.
Under Sect 47 of our Constitution these disputes should be considered by the relevant House. This function was passed to the High Court when it was appointed as the Court of Disputed Returns.
Under Sect 46 of the Constitution, penalties are imposed for false, misleading or incorrect declarations.
Now, if you can believe it, a false declaration is a criminal offence and can incur a penalty of incarceration up to one year. Additionally, there is provision for a £100 ‘fine’ for each day of occupancy of a position which you are not entitled to.
This has been clarified and updated by Sect 3 of the Common Informers (Parliamentary Disqualifications) Act 1975, which is referred to in the ‘Fact Check’ article.
Then there is the letter of demand for those who have occupied an office which they were not entitled to, sent by the Finance Department. As the ABC queried;
“So, will they be forced to repay their salary and entitlements?
Federal politicians are paid pretty well — the average backbencher earns a little over $200,000 and that is before you add on their entitlements and superannuation.
But the short answer is “no”.
When a member or senator is disqualified, the Finance Department will calculate how much they have earned over their parliamentary career, and ask them to repay it.
But by convention, the government of the day almost always waives the debt on request.”
How about we make these fools accountable and require government agencies to do nothing more than their job? They can do it. The precedents are Slipper and Thompson. The government spent millions of dollars to recover thousands of dollars.
As far as I can ascertain, as these are procedural changes, Constitutional amendment is not required. Many changes have been investigated by previous parliamentary committees. The current committee on Sect 44 is hearing of one possible solution by the AEC.
It would be logical to go further. When an aspiring candidate completes their application, it should be fact checked by the AEC. In the event there is insufficient proof of any claim, the AEC should have the necessary authority to request further and better particulars. If need be, investigative functions could be handled by the AFP, if they are not too busy with media exercises for the government, or ASIO, in the event that overseas verification of citizenship status is required. Once this has been done, let the AEC publish a candidate’s full paperwork for scrutiny.
In the event that false or misleading statements are found, charge the miscreants.
If that sounds severe, it is appropriate to take pause and consider the hapless Centrelink claimant, or asylum seeker, or any other claimant of government entitlements (as opposed to privileges), and the penalties imposed on them for the slightest of misdemeanour. These penalties have been decided by politicians and, in many instances, upgraded and harshened by this current crop of miscreants. Them asking for leniency is a request the average voter should not entertain.
As to the current farce, what should we do with those caught out so far? Why aren’t we discussing the full disclosure by the Finance Department of all letters of demand issued to these miscreants? Why aren’t we demanding that the debt be collected?
In the off chance that sounds harsh, there are only two words needed to validate it. Robo-debt.
As to who should or should not be referred to the Court of Disputed Returns as a result of the current farcical handling of this current farcical situation, this is no longer a political decision. The current process has been established by our fearless PM, requiring everyone to complete a declaration and supply the necessary paperwork. He is currently trying to politicise the process by revisiting the right of parliament as to who should be referred and who can refer them.
Our PM has required that everyone submit a declaration with the necessary paperwork. Let’s make it easy for him. Anyone who hasn’t complied gets referred.
If they have stated there is an overseas familial link and have not provided paperwork to show ‘reasonable enquiry’, refer them. As for that fool, Leyonhjelm, he should be considered for contempt, given his outright refusal to comply with the request.
Oh, and as a side issue, Abetz has provided his paperwork. He has been in the Senate since 1994. If you look at his tab, it states;
“Attachment 3 – Certificate of Renunciation obtained in 2010”
Under which he has helpfully added;
“(obtained during High Court proceedings in 2010 to confirm previous renunciation)”
Did anyone check? The ‘previous renunciation’ appears to be a photocopy of a carbon copy of a letter dated 26/11/92 addressed to ‘The German Embassy, Canberra, ACT, 2600’. The contents of the alleged letter is farcical. He says he renounces his German citizenship and, if there are any problems, the Embassy should get back to him.
The jackass from one notion was ridiculed for his e-mail equivalent to an equally nonsensical address. One can only wonder if Abetz got a letter from the Finance Department for his occupancy of a Senate seat from 1994 to 2010.
The final bit of the Fact Check link is interesting.
“The registers will be maintained for all future MPs.
However, the disclosure regime is not expected to protect existing MPs and Senators who failed to comply with section 44 of the constitution.
In these, and subsequent cases, the High Court will remain the final arbiter.
If the Parliament refuses to refer someone to the court, a member of the public can do so, and claim $200 a day for attending the hearing.”
Now, I’m not a lawyer, let alone a Constitutional lawyer. And for historical (as opposed to the MSM weapon of choice, hysterical) perspective, it is important to note the Constitution was unleashed in 1901.
In 1901, there were 3.7 mil Australians (the Indigenous weren’t included) of which 77% were born here and 23% were born overseas. At that time;
“Income figures were not collected in the 1901 Census but were estimated from various sources at the time. For 1901, the mean annual income per inhabitant (including children aged under 15 years) was £46.”
When the Constitution was framed, the number of people born overseas was much the same as it is now. Way back then, it wasn’t a problem. How the feck can this suddenly be a problem now?
As for the penalties, clearly our forebears wanted them to be significant. If the estimate of a year’s income was £46 and the penalty was £100 per day, it could easily be assumed that our forebears had less tolerance for fools. The intent of the penalty could not be clearer.
This isn’t a crisis. It’s a farce. What else would you expect from this government?
As for the media riding ‘shot gun’ and pretending to be doing their job, AAARRRGGGHHH …
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