The Barnaby Joyce Constitutional Crisis
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