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The Barnaby Joyce Constitutional Crisis

The Barnaby Joyce Constitutional Crisis

Or

Is any-one up for a class action against Barnaby?

By Michael Griffin

Contrary to what the MSM is leading many to believe, there is no need for a by election if Barnaby Joyce is found to be a disqualified person pursuant to s 44 the Constitution.

Sections 360 (v) & (vi) of the Commonwealth Electoral Act 1918 (Cth) provides that if Joyce is found to be disqualified then Tony Windsor, as the candidate to obtain the second most votes on the ballot, can petition the High Court sitting as the Court of Disputed Returns to have it declare him the duly elected candidate without need for a by election at all. Windsor would only need to make a submission to the Court on the method of filling the vacancy left by Joyce’s departure at the time of the hearing of the issue of Joyce’s disqualification. Tony Windsor could also seek his costs from the Cth. This would certainly be cheaper for him, and for the nation as a whole, than paying for another expensive election campaign.

Section 360 the Commonwealth Electoral Act 1918 states the following:

Powers of Court

(1) The Court of Disputed Returns shall sit as an open Court and its powers shall include the following:

(i) To adjourn;

(ii) To compel the attendance of witnesses and the production of documents;

(iii) To grant to any party to a petition leave to inspect in the presence of a prescribed officer the rolls and other documents (except ballot papers) used at or in connexion with any election and to take, in the presence of the prescribed officer, extracts from those rolls and documents;

(iv) To examine witnesses on oath;

(v) To declare that any person who was returned as elected was not duly elected;

(vi) To declare any candidate duly elected who was not returned as elected;

(vii) To declare any election absolutely void;

(viii) To dismiss or uphold the petition in whole or in part;

(ix) To award costs;

(x) To punish any contempt of its authority by fine or imprisonment.

(2) The Court may exercise all or any of its powers under this section on such grounds as the Court in its discretion thinks just and sufficient.

(3) Without limiting the powers conferred by this section, it is hereby declared that the power of the Court to declare that any person who was returned as elected was not duly elected, or to declare an election absolutely void, may be exercised on the ground that illegal practices were committed in connexion with the election.

(4) The power of the Court of Disputed Returns under paragraph

(1)(ix) to award costs includes the power to order costs to be paid by the Commonwealth where the Court considers it appropriate to do so.

 

The relevant part as far as Windsor is concerned is subsection (1) (v) & (vi). This means the Court can declare that Joyce was not duly elected pursuant to subsection (v) and then declare Windsor elected pursuant to subsection (vi) without the need for a costly and inconvenient by election at all.

The necessary element of ‘illegal practice’ required by subsection (3) was described in Sue v Hill  (1999) 199 CLR 462 as meaning the definition of that phrase as provided at  s 352 (1) of the Commonwealth Electoral Act 1918 where ‘illegal practices’ simply means a failure to comply with the arrangements set up by that Act. In the case of In Re: Wood (1988) 167 CLR 145 the Court indicated that a break down or failure of the scrutineer system as provided by Part XVIII of the Act would a failure to comply with the arrangements set up by the Act because such a failure would lead to ineligible candidates being elected and invalid votes being cast by electors. Given that the scrutineers failed to detect that Joyce was a disqualified person and that the votes cast for him were invalid, the purposes of the scrutineer provisions in the Act had not been complied with. Hence, the required element of ‘illegal practice’, as that term is defined by the Act, will be met by the failure of the scrutineers to detect the votes cast invalidly for Joyce as a disqualified person. On that basis, it would seem that Joyce is, prima facie, doomed – as is the Turnbull government. In this light, Joyce’s resistance to resigning from parliament and his refusal to heed the calls for him to abstain from voting seems an irrational and delusionary position that could only eventuate from cherry picking the advice of lawyers who have been briefed to give the uncritical opinion requested from them.

Section 379 of the Commonwealth Electoral Act 1918 grants the Court a similar power to that at s 360. It states:

Powers of Court

On the hearing of any reference under this Part the Court of Disputed Returns shall sit as an open Court and shall have the powers conferred by section 360 so far as they are applicable, and in addition thereto shall have power:

(a) to declare that any person was not qualified to be a Senator or a Member of the House of Representatives;

(b) to declare that any person was not capable of being chosen or of sitting as a Senator or a Member of the House of Representatives; and

(c) to declare that there is a vacancy in the Senate or in the House of Representatives.

Hence, after declaring a candidate who has been elected to be unelected the Court can then fill the vacancy by declaring another candidate the winner in the disqualified candidates place without any need for a by election at all.

Once again in the case of In Re: Wood, the Court held that:

…the vacancy resulting from a person being disqualified may be dealt with in the same way as applies where a deceased candidate’s name appears on the ballot paper…and…a vote indicated on the ballot paper opposite the name of a deceased candidate shall be counted to the candidate next in the order of the voter’s preference and the numbers indicating subsequent preferences shall be taken to be altered accordingly.

 

In other words, the preference votes of the disqualified candidate should be counted and allocated to other candidates and the candidate with the highest count of votes after that distribution of preferences may be declared the winner of the election. This is a ‘count back’ so to speak. The Australian Electoral Commission has already done this and Windsor gained the second most votes after the distribution of preferences at the last election by a substantial margin against candidates after Joyce. Thus, Tony Windsor can be safely declared the winner of the election if he seeks an order to that effect from the Court by way a petition. On that basis, Tony Windsor would be declared the member for New England upon Barnaby Joyce’s demise without the need for a by election. This would leave the LNP Coalition without a majority and unable to form a government.

Further, under section 46 the Constitution ANY person can sue Joyce personally for each day he sits in Parliament while a disqualified person. Under that section the Court can declare from which date the person was disqualified and in the recent Bob Day case the Court back-dated Day’s disqualification from the date he first received money in his bank account as a payment for the lease agreement he had with the Commonwealth.

Sections 46 the Constitution says:

Penalty for sitting when disqualified:

Until the Parliament otherwise provides, any person declared by this Constitution to be incapable of sitting as a senator or as a member of the House of Representatives shall, for every day on which he so sits, be liable to pay the sum of one hundred pounds to any person who sues for it in any court of competent jurisdiction.

Joyce’s disqualification could be more onerous for him than Day’s as Joyce has technically been disqualified since he first sat in parliament many years ago and his disqualification could be back-dated many years. If many citizens took action against Joyce under section 46 he would quite clearly be bankrupted and, therefore, further disqualified from being elected at the next election as an undischarged bankrupt.

Further again, if Joyce is found to have obtained a benefit from the Cth, such as his payments as a parliamentarian, without being entitled to that benefit then he also risks being charged and convicted under s 135 (2) Criminal Code Act and deported back to his ancestral home of NZ.

It is a sign of the LNP Government’s desperation that they insist on Barnaby remaining in Parliament. If things go badly for Joyce in the Court he could be standing alone up to his neck in the Darling River water he so readily allowed his National Party donors to pilfer from the Australian people and given his conduct no one would be there to throw him a rescue rope. The fact that Joyce remains in Parliament and is continuing to vote is a disgrace to a system that prides itself on being a robust democracy – indeed that boasts of itself around the world as being such. Allowing invalidly elected politicians to sit in Parliament and vote is a characteristic of a dictatorship not a democracy. What’s more, it brings the Constitution itself into disrepute and defeats any claim that purports the rule of law operates in the Australian politico/legal system. Above all, it clearly shows that the LNP has complete disdain for the Australian people and the principle of the rule of law and are prepared to do anything to impose their agenda on the people to the benefit of themselves and the minority of interest groups they represent and serve at all costs and even though that approach approximates illegality.

Given the LNP’s contempt of the Australian people, it is clearly time to kick back at this inept and inadequate system of government set up by a deficient constitution that allows an invalidly elected person to sit in Parliament and vote on laws that Australian citizens must be subject to and that allows a political party to put the vested interests of its donors before the people and the law of the land. On that basis, one can hope that Tony Windsor takes up his opportunity to rid the Australian people of the contemptuous redneck still sitting in parliament.

In the meantime, and to kick things off, is any one up for a class action against Barnaby?

© Michael Griffin 2017


49 comments

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  1. Keitha Granville

    I do hope Tony Windsor has a mind to ask for this to occur, it would be fabulous.

  2. Matters Not

    Here’s another view – from Antony Green

    A House of Representatives disqualification would lead to a by-election. Once the High Court rules a disqualification, the Speaker would issue writs and a by-election would be held. If Mr Joyce had rid himself of the unwanted New Zealand citizenship, he would be free to contest the by-election …

    As I already explained, lower house disqualifications have always gone to by-election .

    If Joyce was found to be ineligible, and I think he was, then I believe a by-election is inevitable.

    Of course, Joyce could speed up the process by resigning and recontesting the subsequent by-election. Seems to me that this is a mere hiccup in the career of Barnaby and he will be the Member for New England for some time to come. (More’s the pity.)

    As for this speculation …

    http://blogs.abc.net.au/antonygreen/2017/08/barnaby-joyce-joins-the-citizenship-imbroglio.html#more

  3. David1

    hear hear to that

  4. Kronomex

    I will not be surprised in the least if the court finds in favour of Joyce. However, the longer it drags on the more Malcolm’s…oops, the LNP’s, desperation will grow and they will continue to be the never ending laughingstock of Australian politics.

  5. John

    I’m in!

  6. Shogan

    The way they’re carrying on one could almost think that they know they’re in trouble with “Bananaby” & are about to lose their majority in the house.

  7. Möbius Ecko

    After attacking and blaming Labor, his first recourse whenever he’s in trouble, Turnbull has now fallen back to fear of terrorism in holding a presser on his proposed super ministry led by Dutton. Terrorism is second recourse whenever he’s in trouble.

    He must be in a world of hurt at the moment.

  8. stephengb2014

    Sorry but as a pensioner I am not ble to support a class action financially, although I would certainly love to see a class action taken against him, he is a most obnoxious individual.

    Also, Malcolm Roberts, if he is in the same situation.

    S G B

  9. townsvilleblog

    His appearance would suggest that he comes from baa baa stock.

  10. OPPOSE THE MAJOUR PARTIES

    Matters Not. Anthony Green has no legal training so what is the extent of his legal knowledge? ZERO! The author of this article apparently does.

    From Wikipdeadia: “Green graduated with a Bachelor of Science in mathematics and computing, and a Bachelor of Economics with honours in politics from the University of Sydney.[6] He worked initially as a data analyst in the computing industry and for a polling company before joining the ABC in 1989.[6”]

  11. David1

    townsvilleblog…as a person born in NZ I find your comment offensive, its intent is obvious. If it was meant to be funny it wasn’t for me, particularly given the current controversy.

  12. Jonkaby

    Where do I sign up? Count me in for a class action

  13. OPPOSE THE MAJOUR PARTIES

    Matters Not. ‘If Joyce was found to be ineligible, and I think he was, then I believe a by-election is inevitable’. Did you actually understand anything of the article?

  14. Roswell

    You’ve certainly done your homework, Michael Griffin.

  15. OPPOSE THE MAJOUR PARTIES

    It should be made clear that the ALP and Greens can also do what this article says Tony Windsor can do as they came third and fourth in the vote. In fact they may be able to make a joint application advocating that the same method be adopted to fill the vacancy. In that circumstance it would be hard for the court to find against the majority of the candidates

  16. Johno

    Mobius Ecko..Does this mean we have to go back into alert and terrified mode again, just when I was starting to let my guard down.

  17. Frank Smith

    I have just suffered through Wednesday House of Reps Question Time which was primarily devoted to this citizenship issue. What a bloody disgrace and embarrassment to all Australians!!! The Coalition is intent on slandering not only the Opposition but also our “cousins” in the NZ Parliament. Whilst failing to answer any questions, the rants by Trumble, Bishop and Dutton in particular suggest they have become completely unhinged and grasping at imaginary straws. Question Time is a Waste of Time and needs to be got rid of.

  18. LOVO

    This is beyond delicious….the High Court could decide the kiwis fate by mid September and we could have a Labor government by the end of September…or there abouts ish. OH GUFFAW 😆 😆
    P.S. If this does occur I hope that Malcolm has exceeded Tony’s time as PM…icing on cake ?

  19. Matters Not

    OTMP re your query. In response, I’ll simply cite the answer given by Green when you asked him at August 16, 2017 at 01:38 PM

    COMMENT: If Barnaby Joyce is disqualified the result will be declared void triggering a by-election. I am not aware of there ever having been any other outcome from a disqualification case in a single member electorate. On every available single member precedent, the result is a by-election.

    The Sue v Hill case you quote concerned the Senate. In Sykes v Cleary the Court simply declared the result void which would have triggered a by-election were it not for the proximity of the next federal election.

    The unseating/seating points you highlight in your post have been used, but not in disqualification cases. If in a re-count concerning disputed ballot papers the result may change and the Court declare a different winner. The last time that happened was in the Queensland seat of Nicklin after the 1989 state election.

    What part his answer don’t you understand? In legal matters, precedent is of importance. Just like your Law of Odious Debt – it’s extremely unlikely that it’s going to happen.

  20. OPPOSE THE MAJOUR PARTIES

    Matters Not. ‘In legal matters, precedent is of importance.’ There is no precedent as all cases are different on the facts and precedents only apply to matters involving the same facts. the reason why the elections were declared void was due to the fact that no other candidates filed a petition on the way the vacancy needs to be filled. It is irrelevant that previous cases involved the senate as the legislation in consideration applies to both houses and the case law refers to the meaning and application of the provision not the house it applies to. The article above says that a petition to that effect needs to be made.

  21. jimhaz

    On the first link Matters Not provided there is this comment:

    “Senator Sam Dastyari has spent tens of thousands of dollars trying to rid himself of Iranian citizenship. This despite his family having fled Iran to escape persecution”

    That infers to me that the ALP is unlikely to have any folks in the same boat as the Famous Five – that they did do their due dilligence.

  22. Stefano

    I’m in, and while we’re at it let’s also have him charged with aiding and abetting water theft, misuse of taxpayer’s money, taking taxpayer’s money under false pretenses(his wages), environmental vandalism and being a general dickhead.

  23. Fed-Up-Pensioner

    As a pensioner, I also can not afford to join a class action but would love to see it happen and be proven against him.
    I find Mr Nz’er, now Ex Nz’er to be a disgrace abomination, and embarrassment to our political system and the office of which he holds.

  24. Michael Maley

    Section 46 of the Constitution became spent in its effect with the passing of the Common Informers (Parliamentary Disqualifications) Act 1975. The provisions of that Act limit very greatly the level of penalty which an MP might have to pay for sitting while disqualified. There is little or no prospect of Mr Joyce being rendered bankrupt by lawsuits under that Act

  25. Umberto Ledfooti

    Yes. Let us commence proceedings against Bananaboi Bro.

    I would also support any crowdfunding campaign initiated by Tony Windsor to bring a s360 hearing in the Court of Disputed Returns.

    This horrendous regime must be brought down; they are unfit to govern, and at least one of them is ineligible to even sit in the House.

  26. the Lion

    COMMON INFORMERS (PARLIAMENTARY DISQUALIFICATIONS) ACT 1975

  27. silkworm

    Baa-baa-barnaby should be made to refill the Darling River with his tears.

  28. OPPOSE THE MAJOUR PARTIES

    whether the Court would declare Tony Windsor the winner and eligible to take his pace in the House of Reps would depend upon the application of the following section to the facts of Joyce’s case and not on precedent in case law as the court has made it clear that no two cases are alike and precedent can apply only to cases with like facts.

    “(2) The Court may exercise all or any of its powers under this section on such grounds as the Court in its discretion thinks just and sufficient” .

    The key issue would be whether just and sufficient grounds exist to declare Windsor the winner. This issue would encompass considerations such as whether the Court considers sending the community and likely candidates to another costly election is ‘just’ given that the candidates at the last election would be dis-advantaged in a fresh election by lack of funds caused by the expenses they incurred at the last election in the seat and by whether a count back of preferences at the previous vote is ‘sufficient’ to discern the intention of the voters.

  29. Matters Not

    Please read what Michael Maley wrote at 6:35 pm. I suspect he knows what he is talking about. In fact. I am certain of that (as far as anyone can be certain of anything.)

    Lots of speculative nonsense above. No grounded reality. (Not that there’s anything wrong with that. LOL).

  30. Marcus

    In the article it says he could be kicked back to his ancestral home of NZ. I hate to point out his ancestral home is Australia he is NZ by descent only. He won’t be going back to NZ at all.

  31. OPPOSE THE MAJOUR PARTIES

    descent and ancestry are pretty much the same thing. many peoplewith dual citizenship who are found guilty of committing a crime in aust are being deported back to the country in which they have alternative citizenship…including people born here.

  32. Allan Littmann

    This is BS honestly look at the whole lot of them … half should not be there -.- people have been saying it since Abbott was in power… and of course his records were made private…

  33. OPPOSE THE MAJOUR PARTIES

    a full bench of the high court is not bound by precedent or even by its own previous decisions. it sets the ultimate precedent that other courts must follow. hence there are no precedents that it must follow. the high courts powers referred to in the article cannot be restricted provided it is within power and has jurisdiction which in this case it does.

  34. OPPOSE THE MAJOUR PARTIES

    matters not. the law is less often black and white and most often grey so please get a legal education before you criticise others and set yourself up as an expert or judge. you talk bs constantly and frequently.

  35. Christina Heath

    Yes please – count me in!!

  36. Ian

    I noticed Brandis saying that legal advice he had received was that Joyce is likely to be cleared by the High Court because he was unaware that he was a dual-citizen. I am unaware myself though, if or when it was established that Joyce was in fact, unaware that he was a dual-citizen. Can anyone help me out here? Has it been somehow proven that Joyce had no idea of his situation or is Brandis trying to steal a march here? I am not a judge myself, but it appears pretty obvious to me that anyone raised by a parent who is a citizen of a foreign country must surely have had strong reason to assume that there was at least some possibility or even likelihood of dual-citizenship. Or to put it more bluntly, Joyce’s claim of ignorance seems quite ludicrous to me. My wife is a foreign national & it has always been plain as day to me that our kids are at least, possibly dual-citizens. Isn’t that just common sense?

  37. OPPOSE THE MAJOUR PARTIES

    Ian. barnacles knowledge of his father’s nz citizenship will defeat his no knowledge defence.

  38. OPPOSE THE MAJOUR PARTIES

    Tony Windsor has now filed a petition in the High Court challenging Barnacles election. Step 1 complete.

  39. David1

    Go Tony you good thing….incidentally whatever happened to the former Wallaby/publican who coined that phrase as a commentator. Enjoyed his work.

  40. havanaliedown

    Yes please let’s have a rematch. Last time the same combatants met, the 2PP result was 58.52 (Joyce) to 41.48 (Windsor).

    http://results.aec.gov.au/20499/Website/HouseDivisionPage-20499-135.htm

    Tony might be popular with inner-city trendies, but the Bumpkins love Barnaby. It’s a beautiful place too, Bumpkinland.

  41. Michael Taylor

    You’re assuming that there will be a by-election. You assume too much.

  42. Wam

    The judges will never agree to foreign claims to those Australians born here.
    Whatever there is no constitutional need for a by- election and the most appropriate way of replacing a federal politician is to distribute their decond preferences and run the computer recount.
    Look at the consequences the lnp and labor will have to field two candidates in each seat giving supporters more choice and the cost is an AEC employee’s time to push a button? Saving heaps.

  43. OPPOSE THE MAJOUR PARTIES

    Brennan CJ in hearing of Free v Kelly: “Sykes v Cleary cannot override section 364 and if Sykes v Cleary is to be explained by reference to the circumstances of that ballot then, it seems to me, there is a real problem that faces any question of reference to the Full Court”. In other words Sykes v Cleary cannot override the discretion bestowed by s 364 or any part of the Cth Electoral Act 1918. This is the principle that common law or judge made law cannot override Parliamentary made law. The common law principle in the Cleary case – that an election in a House of Reps is void if one of the candidates is disqualified – is not a statutory rule as the Act provides a broad discretion and arsenal of remedies upon the Court to resolve the dispute including declaring another candidate as the winner. However, it would only be possible for a ‘recount’ to occur if the second preference votes of the disqualified candidate (Barnaby Joyce) are available to be distributed or be recounted. Hence, the question is, are the votes available or have the second preference votes been actually counted. If so then a re count can occur. If not then a by election will eventuate rather than a recount.

  44. OPPOSE THE MAJOUR PARTIES

    This will be the issue facing Joyce & Tony Windsor as stated by Brennan CJ in Free v Kelly: “…in the event that Ms Kelly is held to have been disqualified by s 44 of the Constitution, whether a special count “could result in a distortion of the voters’ real intentions” to take the phrase directly from the joint judgment in Sykes v Cleary.” It is not, as some have said, simply a matter of applying Sykes v Cleary as the facts of each case are different and in the Cleary case three of the four candidates were ineligible – Cleary for an office of profit, and the other two on citizenship grounds – and so it was impossible to ascertain the real intentions of the voters in that case. That is not the case in the matter of Barnaby Joyce where only he has been the ineligible candidate.

  45. OPPOSE THE MAJOUR PARTIES

    COMMONWEALTH ELECTORAL ACT 1918 – SECT 393A

    Preservation of documents.

    (1) In this section, electoral documents includes:

    (a) ballot papers; and,

    ……………………

    (10) Subject to Part XXII, the Electoral
    Commissioner may direct that electoral
    documents be destroyed if:

    (a) not less than 6 months have elapsed
    since the declaration of the poll in the
    election in which the documents were
    used; and

    (b) the documents are no longer
    required by the Electoral
    Commission for the performance of
    its functions.

  46. Craig Devlin

    I’m in! How do I join this class action???

  47. Andrew Chambers

    The neutering of S46 in 1975 could be seen as the action that led directly to this mess. The constitutional authors understood that any member of parliament found to have contravened the requirements of S44 would leave the parliament and all decisions made during the tenure of the disqualified open to (costly) dispute. In today’s equivalent spending power, the 100 pound a day would have set Barney back over $14k / day. The modified penalty of $200 and a month in the sin bin hardly matters and offers NO credible threat to a wanna be law breaker as is evidenced by the growing crowd heading toward the parliamentary exits. My concern is that parliament can modify S46 and relieve themselves of any financial penalty yet S44 or any other constitutional modification requires a referendum. Given they can award themselves “generous” salaries and conditions (via their convenient pet “independent tribunals”) there’s a sad but alarming continuity in the one way street of privilege that ends in parliament.

  48. Sickem' Rex

    I’ll be in that!!
    They think they can break the law and then say, sorry it won’t happen again, until next time.
    Let them go to trial and face the punishment that the common person would.

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