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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?

Here’s why.

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.

There’ll be a few. Both from the Senate and the House of Representatives.

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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  1. Sarah Lawson

    Bloody fantastic reporting and accounting. About time but I fear given the timing no one will give a shit and will instead keep hounding hapless Centrelink Clients. Happy Christmas.

  2. townsvilleblog

    Why is it that5 candidates for office do not understand that we the people want representatives who are 100% committed to Australia before they sit in the Australian parliament? A child could understand the concept so why can’t the political parties? To be honest in my humble opinion there is far too much corruption in federal politics going unchecked and the sooner the federal parliament has a Queensland style Crime & Corruption Commission with ‘teeth’ to oversea the parliamentarians the better I will feel about politics in this country. Most States have such Commissions and there is nothing to suggest that this LNP federal government is on the straight and narrow. The attack on ordinary citizens since 2013 has been nothing short of persecution siphoning public money into the greedy claws of the foreign and home grown corporations, 700 of whom make incomes of billions of dollars but yet pay not a red cent in tax, obviously there is fertile ground for a C&CC to sink its teeth into, on behalf of all we poor souls who are struggling to survive.

  3. Wam

    Shakespur has a lot of good titles ‘much ado about eff all’ fits this post.
    The difference between then and now?
    Take your pick:
    1) Some foreign governments, since 1901, decided that men born in a country means all offspring of such men are nominally ‘born’ in that country. A ridiculous assertion, rediculously supported by legal nitwits who ignored the ‘loyalty’ provision of 44.

    2) If the laws allowed born in Australian to be the arbiter then the children of foreigners born in Australia would be Australian. The rabbott would be apoplectic at that ruling???

    3) A dual citizen had a passport that recognised allegiance to another country.

    4) Australian born, iranians, greeks, jews and?? can be conscripted. Indeed all jews are citizens of israel so no jews like frydenberg(no need of mother’s inheritance)

    ps townsvilleblog:
    your first sentence tells the story of the incompetence of the judges. Clearly there is no question of the loyalty of those born in Australia. Joyce is unquestionably Australian, as is lambe.

    The only possible problem is with those twits, erica et al, born overseas.

    aAAaaaaarrrrrrgggggg how did the high court ignore loyalty in favour of the musings of the pollies from a foreign country.
    I challenge winston peters to put up a law stating all Australians who have been to NZ are citizens of New Zealand. Stick that in the judges pipe and have them suck on it.

  4. Jack Russell

    My understanding of the Robo-debt fiasco from reading previously reported investigative accounts is that it is a fraud, was set up fraudulently, was executed fraudulently, and has been managed by fraudulent private businesses who, it seems, have links to the the Liberal Party … as does the Indue Card.

    A permanent standing Federal ICAC, established as an independent statutory body with serious powers and funding, not a mickey mouse self-serving fascade, is desperately needed in this country.

    From the article above, we would appear to also need another empowered body to specifically investigate intending candidates and current sitting politicians, as an unhindered independent task force, who report regularly to the aforementioned Federal ICAC in real time.

    In other words, politicians are just public servants, not entitled potentates, who will have to demonstrate scrupulous integrity to their job descriptions and to work for the common good of We-The-People … at all times … to keep their jobs and/or stay out of gaol.

    If the last several years aren’t are the perfect example of why we must not ever trust politicians to do the right thing, then nothing will ever be.

    Okay, rant over.

  5. Glenn Barry

    The LNP are going to get pilloried over the dual citizenship issue in the new year – they’ve got 5 or more who haven’t done a single thing to renounce citizenship or entitlement to citizenship.

    Even up to the eve of the New England by-election Joyce was still belly aching that he’s dinky di

    Astonishing that these clowns have not done what is required by law prior to submitting their nominations

    The credibility deficit is now our greatest threat to integrity in this country

  6. Rob

    Good work Kyran, nailed it perfectly. MSM is scared to report and interrogate LNP ministers. DOes not like to report the involvement of the IPA and its many members now in Government and the APS

    FYI re the The robo debt algorithm. Was originally a V2.0 effort and not perfect in anyway shape or form. Centrelink is in a bad way and over politicised. Has been for too long. The source data used by centrelink is badly flawed. Constant upgrades, multiple data migrations, Tdouble and sometimes triple data entry by staff in CSC’s and on overtime. MyGov registration issues (password server) Receipting issues with the then new ‘online lodgment’ system and ‘customers’ NOT able to lodge earnings online correctly
    EG: No receipt issued, so multiple lodgments made same day and incorrectly calculated as multiple earnings. The LNP introduced “WPIT payment system” upgrade see attached DHS Corporate plan. Things will not improve. Garbage in garbage out

    WPIT is not an answer to centrelinks woes, just an extension of same shite different day for their customers

    More lies and BS from the new Minister bye bye alan sludge. Hello michaliya cash now OIC of the 2nd ‘Super Dept”; Now two under performing duds. Homeland Security and Unemployment & Innovation.. Turnbull yesterdays man, the LNP in no where land and the rest of us being dragged along on their no-where ride (Apologies to The Beatles)

  7. Max Gross

    Now more than ever, we are “governed” (and i use the term loosely) by fraudsters, grifters and criminals

  8. johno

    Typo… The jackass from one notion,,,.. should be no notion. By the way, I am eternally grateful to 44 for ousting roberts. Good article, thanks.

  9. Terry2

    Before the break upof parliament for the year, Labor proposed that both they and the Liberals and a cross bencher refer their doubtful cases to the Hugh Court and have done with this matter once and for all.

    Turnbull rejected this but still insisted on referring Labor members to the High Court. In so doing he willfully took this matter into the next parliamentary year.

    It is inevitable that a number of coalition members and probably Labor members will need to be reviewed by the High Court and quite possibly more by-elections. Yet Turnbull has refused to address a compromise proposed by Labor and in so doing he has guaranteed parliamentary turmoil into 2018.

  10. pamelac65

    Thank you- more intelligent analysis here than the Binary opposites reporting of MSM. Unless an a versus b argument can underpin an issue, media are not interested.
    The point about the date of nomination was studiously ignored although it was clear as daylight that the Constitution stipulated that “All reasonable steps to renounce other citizenship have to be taken by that date.”

    Few people realise the exhaustive analysis which goes into a refugee application and how one small discrepancy can kill off a claim even of someone with the physical proof of torture on their bodies and coming from a place where it is accepted that persecution is underway. The inadvertent mis-spelling of a name is enough now to kill a claim.

    Why should our elected representatives get away with unlawfully sitting in Parliament while knowing full well that they have not complied with the Constitution? Who will call them on it?

  11. SurReal

    Very informative article Kyran, thank you. This issue is definitely politically overblown, aided and abetted by the MSM – a gratuitous handshake that fuels news sales/profit? A clear process is available for this to be resolved, with clear consequences if it isn’t, and all we see is flippancy. It has become a huge distraction that fills a vast void, a distraction that wouldn’t be necessary if there were actual policies that could be actioned (ones they could rightly claim credit for, unlike ME).

    I don’t have the added distraction of a TV, and my internet access is less than consistent, so research abilities are hampered. But, I am also curious about what other tweaks to, or new legislation that has been added to law under the cloud of all this unnecessary noise. An independent body to oversee these questionable servants of the public, is definitely urgently required.

  12. Kyran

    Perhaps the most blatant case is that of Bananas. On Saturday, 12th August, he renounced his New Zealand citizenship. He announced this to parliament on the following Tuesday, with the very careful caveat that he ‘may’ have had dual citizenship.
    He did not step down from any ministerial positions or relinquish any of his entitlements.
    He stayed on until the High Court decision was made on 27th October.
    He had a piece of paper in August that acknowledged he had citizenship of another country. Yet he stayed on for over two months on a pretence that he ‘may’ have had dual citizenship.
    Does it get any clearer than that? Prior to the 12th August, his defence was he was stupid. There can be no doubt that, after that date, he knew he had dual citizenship. His PM and the ever lacklustre media simply let it go.
    Compare and contrast that with Robo debt. It was not only the algorithms that were problematic. The ‘averaging’ of income was a fatally flawed premise. The inability of Centrelink to correct its own records was shambolic. But the most insidious aspect of it was the reverse burden of proof. A recipient of the letter was guilty until proven innocent.
    Compare and contrast that with applications for protection by asylum seekers. If you fail to adhere to the ever changing rules, you can face deportation to the country you fled in fear of your life. The very definition of refoulement (the forcible return of refugees or asylum seekers to a country where they are liable to be subjected to persecution) which we undertook not to do when we signed the UN Convention all those years ago.
    “The Australian government has maintained that the man was removed because he missed its October 1 deadline to apply for protection, and was deemed not to be seeking protection.”

    “The man had struggled to fill out the 41-page protection application form in English unassisted, and was not able to access legal assistance before the deadline.”

    As to the PM and his flagrant disregard of his own edicts, what can you say? ‘He has poor judgement’ seems to be the accepted wisdom. This farce will continue well into the new year. Our government will play silly buggers and the media will play ‘who’s worse’.
    Federal ICAC? Not necessary, according to these privileged fools.
    Thank you, AIMN, for the opportunity. And thank you commenters for your input. Take care

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