Day to Day Politics: Please – cut out the gutter politics

October 27, 2017
Written by: John Lord
75 Replies

Friday 27 October 2017

I was at my desk early yesterday morning thinking about the events of Tuesday, wondering why politicians do these things. I’m referring to the “Cash Affair”. Why on earth do they keep putting their foot in it? “It” being the filthy gutter of anything that will hurt your opponent.

I was particularly thinking about how these shenanigans are formulated. The series of events that take place. The time wasted doing it. As I was trying to piece it altogether I stumbled on the words of ‘Terry2’ (who is a regular commenter on my articles). “A bit tongue in cheek,” I thought as I read it, but hey, it’s probably what happens. Anyway, this is what Terry2 had to say:

“So, the Registered Organisations Commission (ROC) set up last year to harass the Labor Party and the Unions haven’t had much to do recently and somebody in Michaelia Cash’s office told the ROC that they had better lift their game if they were to justify their existence.

So, the ROC call the AFP and told them that it would be greatly appreciated if they could raid the Melbourne and Sydney offices of the AWU and if they could liaise with media through Cash’s office so that maximum coverage and publicity could be achieved.

So the AFP set up the raids and tell Cash’s staff when and where these raids would take place and Cash’s media liaison people call up the various media companies to organise coverage.

Cash maintains wilful deafness throughout – meaning that she wants to be kept updated on progress but at the same time wants plausible deniability so that she can say that neither she nor her department knew anything about the raids or the coordination of media attendance. This wilful blindness (sometimes called ignorance of law, wilful ignorance or contrived ignorance or Nelsonian knowledge) is a term used in law to describe a situation in which a person seeks to avoid civil or criminal liability for a wrongful act by intentionally keeping himself or herself unaware of facts.

In this case the wheels of this pantomime fell off when Cash told the Senate enquiry, on five occasions, that neither she nor her department had tipped off the media but the media came back at her just as they do in pantomimes saying Oh yes you did.”

He is pretty much on the ball, and when you look at the recent history you see the similarity of events. The Government sets up the ROC, so it’s unlikely to be coincidental that the ROC is looking into the period of time when Shorten was at the union.

Of course, the question that everyone wants an answer to is how did Cash’s Media Adviser find out the time of the raids? Who was his source within the AFP?

Tony Abbott set up a Royal Commission into Trade Unions (or the Labor Party), and another one into the Home Insulation Program. Now we have the ROC. It has repeatedly set up bodies to dig up dirt on the Opposition Leader and the Labor Party. Remember its unrelenting pursuit of Julia Gillard for something that happened over twenty-five years ago? To the detriment of its own governance it has spent far too much time with its head buried in the scandal pit.

The independence of ROC is shot, Cash will have a reputation forever damaged, and the integrity of the Parliament has again kicked an own goal.

In setting up this piece of grubby political skullduggery the Coalition neglected to take into account the obvious contradictions it would confront. There are many. Why, for instance did the Prime Minister hold back on disclosing his own donation to the last election campaign? What about its own donations scandals, and more recently its refusal to look into allegations of corruption in casinos? Don’t mention banks, either.

There will come a time when the Labor Party will govern. It is to be hoped that they will avoid the temptation of revenge. Although a Royal Commission into the “Ashbygate” affair could be justified, it should avoid doing so, and just govern.

When one looks back and remembers the image Malcolm Turnbull once presented of himself and of that he now presents, one cannot but be amazed at the transformation.

My thought for the day

“Question everything. What you see, what you feel, what you hear, what you read and what you are told until you understand the truth of it. Thoughtlessness is the residue of things not understood and can never be a substitute for fact.”

PS: I will be away for a few days. It’s a very ‘moving’ experience.

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Michael JordanOctober 27, 2017 at 6:55 am

Government overreach is out of control.

And today, we heard the Turnbull Government might be using the Department of Foreign Affairs to help Adani secure overseas finance for its Carmichael mega-mine.

It’s part of this government’s disturbing pattern of targeting its perceived enemies and propping up its corporate friends. So who’s policing the politicians, who have more power and potential for corruption than anyone?

We need a federal anti-corruption watchdog – like the ones in our state governments – to keep our national politicians honest and always acting in the best interest of everyday people.

https://www.getup.org.au/campaigns/democracy/federal-icac-1/who-s-policing-the-pollies?

Ella millerOctober 27, 2017 at 7:13 am

Mr. Lord, hope you have a good break. Always appreciate your informative pieces.

The past few days have been a sickening example of how low our political class can sink. How stupid do they think we are?
Watching Question Time I have been sickened by the determined effort to destroy Bill Shorten’s reputation.The half-truths, the outright deceptive statements not to mention the desperation.

Now minister Cash…they must think we came down in the last shower.
Well, LNP we have not. We can smell a rat and having the Aim Network to clarify issues is invaluable.
The last few days have brought back to me, my dear fathers saying…. ” Don’t dig a grave for someone else because you will end up falling it.”
The arrogance of Minister Cash, refusing to turn up today to the Senate.
The outright deceptive statement, that the meeting before QT with the PM did not include a discussion on how to deal with the mess they have created.
LOL….we do NOT believe any of them.

wamOctober 27, 2017 at 7:14 am

Sadly, the only truth will be that of the LNP.

Have good break and we will reflect on how to question the truth as believed by journalists, politicians, jews, christians, muslims and extremists of each.

What is the truth in may, might, could, should, possibly, probably, believe it to be, would have been?
ps
Labor cannot access the morning shows to mention the millions wasted on commissions. The pink batts achieved nothing but the pink batts are still anti gillard.

MattsOctober 27, 2017 at 7:17 am

Mr Lord, I happened to hear Pyne in parliament and he in fact reeled off quite a list of findings by the royal commission into the unions. There seem to be questions hanging over the CFMEU

Terry2October 27, 2017 at 7:54 am

Thanks John.

Whilst Michaelia has gone into witness protection there is still one problem facing the government. David De Garis the sacked staffer who coordinated the media to be at the AWU offices has, as one commentator put it, been thrown under a bus and then taken to a railway station and thrown under a train and is now going to be investigated by the AFP which may get a bit confusing as he (or somebody) had been liaising with the AFP to coordinate the media scrum.

My head is spinning. I really don’t know how this government has the time to govern with all their machiavellian scheming ……………Oh, that’s right they don’t govern, do they.

Good luck with the move, John but you may have to report back for duty when the HIgh Court determinations are announced.

I hear that the High Court may adopt the Numpty approach with Joyce : this, in constitutional terms, means that the High Court will say that they don’t give a fig about Barnaby being a Kiwi but they will still rule him ineligible to be elected to high office based on the Numpty principle developed in Scottish law and meaning that he is a stupid or ineffectual person.

helvityniOctober 27, 2017 at 8:00 am

Cash, Hanson, Dutton, Barnaby… it’s all getting too ugly and negative….

John Lord, have a good well-earned break away from politics, I think we all need it…

Florence nee FedupOctober 27, 2017 at 8:07 am

Pyne has been reeling off for years much from TURC that is pure fantasy.

PM’s message to his team in spite of all that has happened this week, was to tell them to focus on union corruption.

AWU court action is the biggest danger to government today.

Möbius EckoOctober 27, 2017 at 8:09 am

Matts, the key item in your post is, “in parliament”.

Pyne, nor anyone else in government makes these accusations outside of the privilege of parliament. That should tell you something.

The cases against the union referred to the courts by the TURC have been thrown out. That should also tell you something.

BruceOctober 27, 2017 at 8:23 am

Make sure you all sign the Getup petition in Michael Jordan’s link above. I have.

Michael TaylorOctober 27, 2017 at 9:04 am

It’s a pity for John that he’ll be too busy today to hear of the High Court’s decision on Joyce et al. ?

Kaye LeeOctober 27, 2017 at 9:11 am

“During the stormy days of “Goanna” in 1984, when Turnbull ran Packer’s campaign to clear his name after The National Times published leaked case studies from the Costigan Royal Commission, he persuaded Packer to counter-attack with a “violent” (Turnbull’s word) public attack on royal commissioner Frank Costigan QC. In one of the most aggressive performances seen in Australia, Turnbull taunted Costigan to sue him – according to Justice David Hunt in the NSW Supreme Court, Turnbull accused Douglas Meagher QC and Costigan of being unjust, capricious, dishonest and malicious.

Turnbull had said Meagher, the counsel assisting the commission, had leaked the case studies which formed the basis of the “Goanna” allegations. The then National Times editor, Brian Toohey, told Good Weekend. “Douglas Meagher did not leak them to me nor did Frank Costigan. By the time I got the documents, they had been widely circulated at government level. I am astounded that people in the media like Packer and Turnbull so wildly and inaccurately pointed the finger at people when they didn’t have a clue. Had the defamation case [Packer sued Meagher] gone ahead, they would have gone on their neck unceremoniously.”

Packer was cleared in a statement by then Attorney General Lionel Bowen but Turnbull’s behaviour backfired. Packer’s defamation action was struck out as an abuse of process and there came a devastating attack on Turnbull by Justice Hunt who said he had managed “to poison the fountain of justice”.

Turnbull’s scorched-earth use of the media made him unpopular with elements in the NSW Bar and was a factor in his leaving. He later moved fulltime into merchant banking.”

http://www.smh.com.au/good-weekend/gw-classics/raging-turnbull-20140904-10c7ye.html

helvityniOctober 27, 2017 at 9:18 am

Michael, I don’t think that anything good will come from the High Court; I’m turning from an optimistic Pollyanna into a negative sourpuss… (It took two Liberal leaders, Tones and Mal )

Adrianne HaddowOctober 27, 2017 at 9:23 am

When is the next election, where is the Governor General, how do we get rid of these lying, corrupt, self-serving trough snufflers? Do we deserve the fascism that is served up as government by these inept puppets posing as politicians?

paul walterOctober 27, 2017 at 9:30 am

Completely deliberate and long planned assault on the unions as part of a process to undermine resistance to command authoritarianism.

Has been ignored in the morning news as they desperately seek a diversion in the form of the high court decision, which will probably be rigged in favour of the conservatives.

245179October 27, 2017 at 9:37 am

Dissolve the govt, we go to the polls, we send the same muppits back to canberra………hello

Joseph CarliOctober 27, 2017 at 9:58 am

I’ll make a prog’ on the high court decision..though I wouldn’t put money on it..but I reckon, based on my suspicion of many of these decisions coming from a combination of “old school tie” and “consciousness of kind” sympathy, Barnaby Joyce and Larissa Waters will be let off, and the others sacrificed as a kind of compensation for there being no risk of bringing down the conservative government.
But that’s just my opinion..I hope I am proved wrong.

IPA is an associated entityOctober 27, 2017 at 10:01 am

Please re-caption the photo that starts the piece. “I told a whopper today and it was this big”.

lawrencewinderOctober 27, 2017 at 10:06 am

I completely disagree with the idea of letting this rabble off-the-hook. They have been the worst and most serious offenders in mangling the democratic process. They have 85% of the media behind them covering their tracks and obfuscating their wrongdoings and need a series of lessons to experience, with interest the blowtorch they apply to others …and in this I include the malign voices of Devine, Jones, Hadley, Bolt, et al, who daily, lie and promote the destruction of democracy. Let them feel the heat for once.

http://shanewombat.blogspot.com.au/2017/10/from-sublime-to.html

Joseph CarliOctober 27, 2017 at 10:10 am

” His (Giddings) most significant contribution is the concept of the consciousness of kind, which is a state of mind whereby one conscious being recognizes another as being of like mind. All human motives organize themselves around consciousness of kind as a determining principle. Association leads to conflict which leads to consciousness of kind through communication, imitation, toleration, co-operation, and alliance. Eventually the group achieves a self-consciousness of its own (as opposed to individual self-consciousness) from which traditions and social values can arise.”…(wiki’)

Michael TaylorOctober 27, 2017 at 10:19 am

Despite all the speculation around the High Court case, the law is the law and the one place that will uphold the law is the High Court. They will not be swayed by bullshit.

I’m expecting that all seven of the politicians will be found to be dual citizens.

If not, we may as well throw away that section of the Constitution, otherwise it will be forever ‘manipulated’. The precedent will have been set.

Joseph CarliOctober 27, 2017 at 10:23 am

” They will not be swayed by bullshit.”….I don’t know…have you never been to the Happy Hour down at “The Saracen’s Head” (the favoured watering-hole for the legal fraternity in Adelaide City).

crypt0October 27, 2017 at 10:29 am

“it (an ALP government) should avoid doing so (exposing Ashbygate to the hard light of day) , and just govern ”
I disagree entirely.
Following this course of action merely takes us back to where we are now …
AFP raids, ROC investigations, ABCC actions, , etc all aimed at the left(ish) side of politics.
Meanwhile the conservative right lie wilfully and often in the parliament and MSM … why ?
Because they know there will be no consequences.
As Lawrence said …
Let them feel the heat for once.
Enjoy the break, John … you’ve earned it.

Matters NotOctober 27, 2017 at 10:37 am

What MT said. It’s a Court with 7 Judges, four of whom were appointed by the ‘conservatives’. Conservatives do not like activist judges. Prefer strict constructionists. The wording of the relevant section is crystal clear.

That ‘ignorance’ is a valid excuse would be a bridge too far. (Please Sir I didn’t realise I was drunk at the time …. )

Judge them by the outcome, not by their intentions or ignorance. If change is needed to the Constitution then there is a avenue available. Conservative Judges avoid making the law,

Frank SmithOctober 27, 2017 at 10:44 am

Yes, Senator Cash has “gone into witness protection” and over at Senate Estimates today Bookends Brandis is doing his damnest to make sure no further questions can be asked because these are matters being investigated by the AFP. He also expects us to believe that neither he nor his Office have had any discussions with the Prime Minister’s Office on the matter this morning. How daft do these arrogant “born-to-rules” expect we voters are?

Cash has considerable form in attacking Opposition Leaders. This is illustrated in this screaming rant which expands on the image that John has used to headline this article:

Peter FOctober 27, 2017 at 10:45 am

MT, I agree with you.I expect that the High Court will see the danger of setting a precedent which has the potential for manipulation.

Joseph CarliOctober 27, 2017 at 11:02 am

Of course…there is the politics of the High Court to consider..

“Greater stability

As the two-party system solidified and majority governments became the norm at the commonwealth level, there was no real call on the Governor-General to exercise reserve powers and therefore, no need for constitutional advice.

This did not mean that High Court justices were necessarily more circumspect about giving advice. Sir John Latham, for example, while Chief Justice of the High Court, apparently advised the prime minister on the drafting of a referendum to overturn the High Court’s judgment in the Communist Party case.

The next occasion for the exercise of reserve powers at the national level did not arise until the Prime Minister, Harold Holt, went missing in 1967. The Governor-General, having taken advice from the chief justice, Sir Garfield Barwick, exercised his reserve power to terminate Harold Holt’s commission as prime minister and appoint John McEwen until a new Liberal leader could be chosen.
Stately advice

In the meantime, at the state level, constitutional crises still abounded and advice was regularly given to governors by judges. In 1932, the NSW governor received advice from the NSW Chief Justice on dismissing the Lang Government, just as in 1927 his predecessor had received the Chief Justice’s advice on his reserve powers concerning the dissolution of Parliament and the “swamping” of the upper House.

In 1939, the next Chief Justice of the NSW Supreme Court advised the governor about a constitutional crisis involving the defeat of the government on a financial measure.

In Victoria, political instability and constitutional crises extended into the 1950s. In 1952, for example, the chief justice of the High Court, Sir Owen Dixon, along with the Chief Justice of the Victorian Supreme Court, advised the governor about a conflict very similar to 1975.

Labor, with the support of break-away Liberals, blocked supply in the upper House. The Governor refused the Country Party premier an election because supply would have run out during the election period. A new premier was commissioned, who managed to pass supply in the upper House but was then defeated in the lower House.

It was Sir Owen Dixon who advised the Governor to restore the former premier and grant him an election.

In 1955, Dixon again advised the Governor on how to deal with a government that was running out of supply but not prepared to recall Parliament and face a vote of no confidence.

Dixon also advised the Western Australian governor in 1956 and 1961 on other constitutional crises.” https://theconversation.com/masons-role-in-the-1975-dismissal-unprecedented-hardly-9174

SGBOctober 27, 2017 at 11:36 am

I bring your attention to.a legal principle that will let Joyce and possibly others off the hook.

mens rea
Also found in: Dictionary, Thesaurus, Medical, Acronyms,Wikipedia.

Mens Rea

As an element of criminal responsibility, a guilty mind; a guilty or wrongful purpose; a criminal intent. Guilty knowledge and wilfulness.

A fundamental principle of Criminal Law is that a crime consists of both a mental and a physical element. Mens rea, a person’s awareness of the fact that his or her conduct is criminal, is the mental element, and actus reus, the act itself, is the physical element.

The concept of mens rea developed in England during the latter part of the common-law era (about the year 1600) when judges began to hold that an act alone could not create criminal liability unless it was accompanied by a guilty state of mind. The degree of mens rea required for a particular common-law crime varied. Murder, for example, required a malicious state of mind, whereas Larcenyrequired a felonious state of mind.

Michael TaylorOctober 27, 2017 at 11:41 am

SGB, Mens rea applies only to criminal law. In this case, it is not a criminal matter as no crime has been committed.

KronomexOctober 27, 2017 at 11:44 am

Cash should be forced to step down until the investigation is completed –

http://www.smh.com.au/federal-politics/political-news/australian-federal-police-launch-investigation-into-media-tipoffs-ahead-of-awu-raids-20171026-gz99va.html

jimOctober 27, 2017 at 11:57 am

“Tony Abbott set up a Royal Commission into Trade Unions (or the Labor Party), and another one into the Home Insulation Program”

And what gets me goat is that the LNP are allowed to take back more money from the RC into child abuse (set up by Labor) and give it to the RC into the unions but leave out including businesses, no businesses ever break the rules .
LNP protecting pedephiles now why is that?. wasn’t the mr Pell at the LNPs IPA meetings ?

OPPOSE THE MAJOUR PARTIESOctober 27, 2017 at 11:59 am

Why all but Mr X will likely be found to be disqualified. Re HC decision today. In the event that an application of a provision (such as s 44 in the Constitution) results in an ambiguous result, the purposive approach to statutory interpretation must be applied. That is both statutory and common law in Australia and in the UK. Applying the purposive approach to statutory interpretation means the Court can consider extraneous or extrinsic materials and documents. In other words, the court must go outside the literal text of the provision to understand the intention of the drafter of the provision. In this case, those documents will be the records and explanatory memoranda etc of the Constitutional Conventions and any speeches made in Parliament etc. Engaging that approach, the HC Court will find that the intention of the drafter in s 44 is to prevent the risk of parliamentarians having divided loyalties and, as a matter of fact, dual citizens necessarily have divided loyalties. Thus, it is simply a question of fact – is this parliamentarian a dual citizen? If so, they are ineligible. Hence, they will all be found ineligible other than Mr X because being a British Overseas Citizen requires that someone needs to apply for it and, in any event, it bestows no rights and privileges. All Australians born before a cut off year in the 1980’s can apply to be British Overseas Citizens including myself and I am an 8th generation Australian descended from a first fleeter! Mr X has not done so and, hence, as a matter of fact, he is not a British subject or citizen and does not have divided loyalties. Mr X will survive. On this interpretation, the legal advice of SG Donaghue and AG Brandis (and of Turnball) was wrong and the matter has been a waste of the High Court’s time and should have been dealt with in parliament by the impugned parliamentarians being dismissed or resigning. Of course ‘the great legal minds’ of Brandis and Donaghue (and Turnbull) should be expected to know this but apparently they did not. Hence, cost orders should be made against Brandis and the SG personally for wasting the Court’s time and for bringing a case without prospects of success and not born by the people through the Cth. But of course the HC wont make that cost order. In the light of this, the whole HC citizenship saga has been a ruse and an abuse of the legal system being solely motivated to preserve the Turnbull government’s majority in the House of Reps to get its legislation though. That has been its only, albeit, improper, purpose

John O'CallaghanOctober 27, 2017 at 12:20 pm

So Turnbull is calling in the AFP to investigate the AFP…. yea that should work out well!!

Joe RoskellOctober 27, 2017 at 12:55 pm

I understand the moral argument, BUT how can we countenance the continuation of the corruption within our body politic? If Labor do not root it out of the LNP and Big Business then it will continue to fester. I really believe that Labor SHOULD go after the LNP and clean out the corrupt politicians. Go after Murdoch and the IPA and expose the links and regulate them properly. If they don’t it will be business as usual. The one caveat I make is that go after them, go hard and go EARLY in the term.
http://www.smh.com.au/nsw/calls-for-investigation-into-national-party-president-larry-anthonys-lobbying-firm-sas-group-20170930-gyrxkz.html

BertOctober 27, 2017 at 1:29 pm

Michael Jordan wrote
“We need a federal anti-corruption watchdog – like the ones in our state governments – to keep our national politicians honest and always acting in the best interest of everyday people.”

I couldn’t agree more but any such organisation needs real teeth and the introduction of heavy penalties. Most goverments seem to have a thing about mandatory sentencing lately so for malfeasance in political office a mandatory 25 years for all levels of government with no parole and multiple thousands in fines

jimOctober 27, 2017 at 1:40 pm

Great Q&A ABC by Chris Bowen ; The states have just BOOTED LNP federal treasurer scoti More a sin out of state treasury affairs KICK THIS MOB OUT and while your at it DITCH the WITCH in a Cash bag at sea. They have gone too far.

btw just signed up to Getup.org 4free.

Michael TaylorOctober 27, 2017 at 1:43 pm

Ah, OTMP, you’ve hit the nail on the head: the explanatory memoranda.

It’s the first thing we went to – as well as speeches made in Parliament – when trying to get to the intent of a piece of legislation (or amendments) when, in my case, I was working in social security legislation and litigation.

We still had trouble … lawyers from various departments would interpret the law differently. I’m sure it’ll be the same in the High Court.

Michael TaylorOctober 27, 2017 at 2:21 pm

Joyce is gone. All are gone accept Canavan and Mr X.

Peter FOctober 27, 2017 at 2:21 pm

J O’C calling on the AFP to investigate does sop all embarrassing questions, as has already been shown.

paul walterOctober 27, 2017 at 2:28 pm

Michael Taylor, re earlier comment. The law it self is bullshit. They are myopically forced to uphold bullshit.

If Ludlum kicked out while the resignation of Cash would be “unreasonable”, according to Xylophone, there has developed a very “Alice in Wonderland” aspect to these events.

paul walterOctober 27, 2017 at 2:31 pm

Law counters Justice.

Michael, just spotted your comment re high Court. As I predicted, the ones that should have gone have stayed and (some of) the better ones gone. Am consoled at partially predicting it and repulsed at the monumental native imbecility of it.

Nobel Prize for Murphy.

jimhazOctober 27, 2017 at 2:35 pm

That is sad is relation to Canavan.. he is dangerous as he thinks in a similar fashion to Abbott, but I suspect long term he will end up in jail.

Michael TaylorOctober 27, 2017 at 2:37 pm

Paul, the “bullshit” comment was in reference to all the crap that Brandis, Turnbull and the coalition’s lawyers have been putting forward. The High Court would have ignored it.

Turns out they did. ?

paul walterOctober 27, 2017 at 2:45 pm

It’s ok, mate…I tire of the way politics emanates lately and off for a walk to buy some some dinner. I’m not cross with you, quite the opposite.

But Brandis, Turnbull and many others are odious. If we had a dollar for everytime they had proven it we could probably retire to the Sunshine Coast.

Wait a minute..it DOES mean that Fiona and Barnaby have gone and the idiot Roberts…maybe not so bad…justice corrupting the law, as with Cash.

paul walterOctober 27, 2017 at 2:46 pm

Serves them right for preferring to be poms to aussies.

nurses1968October 27, 2017 at 2:47 pm

Barnaby will enjoy a little break till a by election early in december and waltz right back in.Apparently polls in New England have him at 60%
If nothing else it is nice that he did get busted

Möbius EckoOctober 27, 2017 at 2:47 pm

“Joyce is gone.”

Now we need to see how the three-month rule is interpreted. The way I read it, it’s from the time he became a member of parliament, but some are saying it’s from the time of this ruling.

This is important because the polls show Joyce will win the by-election easily, though by-elections are notorious for going against expectations. So if the three-month rule is invoked from the time Joyce became a member, then it means every decision and vote he made since that date and the date of his re-election is invalid.

Michael TaylorOctober 27, 2017 at 2:50 pm

Joyce said that he had it in his mind that he’d be ruled ineligible. Why then didn’t he stand down? Why?

paul walterOctober 27, 2017 at 2:52 pm

Looking after vested interests to pay for the bribes.

paul walterOctober 27, 2017 at 2:58 pm

Watching the ABC at moment, it is like viewing a pictorialised version of Rossini’s “ThIeving Magpie”.

“Where’s the ring….WHERE’S THE RING!!”.

KyranOctober 27, 2017 at 2:59 pm

Not as good as hoped for, but it puts the machinations of the Nats into perspective. In addition to bananas dalliance, there has been talk of the inland rail ‘pork barrelling’ and the matter of the Murray Darling fund, all of which were, apparently, Nat’s jockeying for position.

http://www.abc.net.au/news/2017-10-25/nationals-brawling-over-inland-rail-ahead-of-high-court-ruling/9084190

That ‘agreement’ between talcum and bananas, what happens to that now? Joyce is gone and the bye-election is unlikely before December 2nd. Parliament sits from November 13-30. Nash (Nat) is to be replaced by Hollie Hollis, a Liberal. Will the Nats lose cabinet positions? Ministries? Will talcum reshuffle his cabinet now or after December 2?
And, just for fun, will GetUp have a play in New England? Will bananas be Kiwi of the Year?
Then there are the little things, like running the country.
Thank you Mr Lord and commenters. Take care

Joseph CarliOctober 27, 2017 at 3:17 pm

So glad to be proven wrong!…

JackOctober 27, 2017 at 3:20 pm

I don’t like/dislike Joyce anymore or less than the other wafflers, but if one of your parents emigrate here before you were born, its stupid that this makes you ineligible to run for parliament.
I know the law is the law, but this just doesn’t survive the pub test.
Another great waste of money by OZ along with the SSM vote.
We just keep outdoing ourselves

jimhazOctober 27, 2017 at 3:37 pm

[Another great waste of money by OZ along with the SSM vote]

It is rather nice though that now the Nationals have to spend money to win a by-election – though maybe Gina will bankroll it seeing as he is her boy.

Möbius EckoOctober 27, 2017 at 3:43 pm

So far not a single reporter or media outlet has pulled Turnbull on his statement when this citizenship conflict blew up. That is that he preempted the High Court and said emphatically that they would find in favour of his L-NP members. Some rightly pointed out at the time he was circumspectly telling the court what to rule in this case, but he only singled out that ruling for the L-NP.

I hope someone throws that back in his currently smirking face.

OPPOSE THE MAJOUR PARTIESOctober 27, 2017 at 3:53 pm

Michael Taylor. “Ah, OTMP, you’ve hit the nail on the head: the explanatory memoranda.

We still had trouble … lawyers from various departments would interpret the law differently. I’m sure it’ll be the same in the High Court.”

I said on another post that I could sum it up in one paragraph and for the very large part that is what I did. The purposive approach to statutory construction which enables extraneous materials such as explanatory memoranda etc to be considered to determine the intention behind legislation is actually the law in Aust and UK. Regardless of whether a judge is ‘conservative’ or more ‘liberal’ that approach must be applied. I know that but many lawyers obviously don’t.

Most lawyers have no idea…I should know, I have dealt with them for numerous years. Training is very bad. Essentially, they only need a 50% pass to get an LLB and most lawyers progress through the ranks of the profession by their nepotistic connections not on merit. Fortunately, I paid attention at Law School and actually studied. Most don’t.

So I got 6 out of 7 right, which is more than SC Donaghue, AG Brandis QC and barrister Turnbull did and they are running the country. Which reflects on many things. How Turnbull can be a successful barrister and Brandis a QC is beyond me frankly. If they were surgeons you would not put your life in their hands. I should have refrained from predicting the outcome of Cavanagh because I did not really know all the accurate facts in that matter given he changed his story several times. Donaghue should be dismissed immediately. His advice was not only poor but obviously bias and contrary to law and has cost the country money.

Thanks for your vote of confidence

Terry2October 27, 2017 at 3:55 pm

We should all celebrate the fact that Malcolm Roberts will never again darken the portals of our parliament : it’s empirical in its wisdom.

Barnaby will be back before Christmas it seems but in the meantime Nigel Scullion is the Leader of the Nationals….Oh Dear !

Michael TaylorOctober 27, 2017 at 4:05 pm

Brandis was quick to suggest that Ludlum should pay back his salary when he outed himself all those months ago.

I would expect the same standards to apply to Joyce.

Michael TaylorOctober 27, 2017 at 4:18 pm

Turnbull has flagged the possibility of changes to section 44 of the constitution.

Oh, how predictable.

OPPOSE THE MAJOUR PARTIESOctober 27, 2017 at 4:20 pm

Terry2. ‘We should all celebrate the fact that Malcolm Roberts will never again darken the portals of our parliament: it’s empirical in its wisdom’. Don’t count ur chickens. Alienboy will be back causing havoc in Qld state politics for One Nation next year and then he can move back to Fed politics. But I don’t think he will come back federally as he is only really after a cushy job with a big wage and state politics pays as much as Fed and is a lot easier

Möbius EckoOctober 27, 2017 at 4:39 pm

https://pbs.twimg.com/media/DNHgfcwVAAAqTKi.jpg

Matters NotOctober 27, 2017 at 4:44 pm

Re possibility to change the Constitution. Good luck with that. Here’s some history.

http://www.aec.gov.au/Elections/referendums/Referendum_Dates_and_Results.htm

Besides, the major Parties don’t seem to have any problems. Also Turnbull has no political capital to waste.

Frank SmithOctober 27, 2017 at 5:11 pm

Turnbull takes over Agriculture and Water. Is he immediately going to go after those corporate farmers around Bourke stealing Murray/Darling water?

Malcolm Roberts, who was a Queensland Senator by virtue of just 77 primary votes, is now threatening to take his empirical evidence campaign to the seat of Ipswich. – a Labor seat held by Jennifer Howard, a rather popular member – perhaps Roberts will win because he “believes he is the member”.

OPPOSE THE MAJOUR PARTIESOctober 27, 2017 at 5:21 pm

Why my post above was correct.The Court did exactly as I said it would in looking to extraneous materials outside the legislation to discern the intention of the drafters of s 44. Yet Donaghue, Brandis and Turnbull all got it wrong. Obviously the whole exercise was a ruse to allow Turnbull’s LNP to maintain the numbers in the Parliament to push through its draconic laws. You think you live in a democracy?Think again.

Here’s the High Court’s ratio descidendo (binding reasoning) in its REASONS FOR DECISION.

The approach urged by the amicus and on behalf of Mr Windsor must be
accepted. It adheres most closely to the ordinary and natural meaning of the
language of s 44(i). It also accords with the views of a majority of the Justices in
Sykes v Cleary, the authority of which was accepted by all parties. A
consideration of the drafting history of s 44(i) does not warrant a different
conclusion.

The Text and Structure of s 44(i)

…..

The Purpose of s 44(i)

In Sykes v Cleary, the plurality, comprising Mason CJ, Toohey and
McHugh JJ, said that s 44(i) was adopted to ensure “that members of Parliament
did not have a split allegiance”11. Brennan J explained that the purpose of s 44(i)
“is to ensure that no candidate, senator or member of the House of
Representatives owes allegiance or obedience to a foreign power or adheres to a
foreign power.”12Deane J said that the “whole purpose” of s 44(i) is to “prevent
persons with foreign loyalties or obligations from being members of the
Australian Parliament.”13

It is evident that the first limb of s 44(i) pursues this purpose by looking to
the conduct of the person concerned. The second limb of s 44(i) does not look to
conduct manifesting an actual split in the allegiance of the person concerned or
the person’s subjective feelings of allegiance. On the contrary, it operates to
disqualify the candidate whether or not the candidate is, in fact, minded to act
upon his or her duty of allegiance.

In the course of arguing that a candidate cannot be disqualified by the
second limb of s 44(i) if he or she does not know that he or she has the status of a
foreign citizen, Senior Counsel for Mr Joyce MP and Senator Nash made the
rhetorical point that “[y]ou cannot heed a call that you cannot hear and you will
not hear the call of another citizenship if you do not know you are a citizen of
that other country.” The answer to that point is that, as a matter of the ordinary
meaning of the second limb of s 44(i), proof of actual allegiance as a state of
mind is not required. Rather, as Brennan J explained in Sykes v Cleary, the
second limb is concerned with the existence of a duty to a foreign power as an
aspect of the status of citizenship.

The Drafting History of s 44(i)

The drafting history of s 44(i) does not support identification of a
narrower purpose sufficient to constrain the ordinary and natural meaning of the
language ultimately chosen.

The first official draft of the Constitution Bill prepared for the National
Australasian Convention in 1891 contained two identical clauses which provided
respectively that the place of a senator and a member of the House of
Representatives “shall become vacant … [i]f he takes an oath or makes a
declaration or acknowledgement of allegiance, obedience, or adherence to a
Foreign Power, or does any act whereby he becomes a subject or citizen, or
entitled to the rights or privileges of a subject or citizen of a Foreign Power”15
.
The language was derived from the British North America Act 1840 (Imp)16 as
replicated in the New Zealand Constitution Act 1852 (Imp)17 and the
British North America Act 1867 (Imp)18 and as substantially replicated in the
constitutions of each of the Australian colonies which were to become States19

Within a week of the first official draft, following the voyage of the
Lucinda, the two clauses were recast to take the form in which the predecessors
of ss 44(i) and 45(i) came to be adopted without substantial debate in the final
draft of the Constitution Bill to emerge from the National Australasian
Convention in 1891. The clauses as so recast each applied to both senators and
members of the House of Representatives. Departing from the Imperial and
colonial precedents, they were no longer confined to vacating places of
parliamentarians by reference to acts done by them after election. They extended
also to disqualifying for election as parliamentarians persons who had done any
of the same acts before election.

Pete PetrassOctober 27, 2017 at 10:09 pm

And I have no doubt Cash’s sacrificial lamb will, after an appropriate holiday period, turn up somewhere in a higher paying cushy government job as a promotion.

paul walterOctober 27, 2017 at 11:26 pm

Back for other read. The more I read the more I feel ill at these sorts of individuals in charge of our individual and collective futures..

I mean, just how deranged is Malcolm Turnbull? All on that side of politics, in fact.

SGBOctober 28, 2017 at 6:45 am

Glad I was wrong too, but truly I had serious misgivings.

Möbius EckoOctober 28, 2017 at 7:28 am

Pete Petrass, that’s exactly what happened with several of Howard’s staff who took the fall for him over children overboard and other matters. Howard was the first PM to have a large firewall of staff around him. The incongruity of Howard was the fact he frequently stated he takes full responsibility for his actions but he never did. He, like the current mob, constantly blamed others for his failings or let others take the fall.

Another example is the AWB. That board walked away after the AFP inexplicably dropped their investigation.

helvityniOctober 28, 2017 at 8:02 am

Loud-mouth, demanding American tourists used to be called Ugly Americans….

Looking at the at the picture in the Möbius Ecko’s post, I’d call them Ugly Australians; never mind the outer, what’s inside is the deciding factor in this ‘beauty’ competition…

helvityniOctober 28, 2017 at 8:09 am

paul walter, did you see Amanda Vanstone throw a tantrum on the Drum yesterday, accusing that nice legal bloke of constant interruptions…

He did no such thing, the shouting interrupter was Amanda herself…talk loudly and fast, and blame someone else for your failings: the Liberal mantra.

Florence nee FedupOctober 28, 2017 at 8:29 am

There is only one change needed for S44 in the constitution. Those found guilty of signing statutory declaration they are not duel citizens be illegible to nominate for the seat made vacant by their actions. This happens in upper house. Why not lower.

Joyce shouldn’t be allow to stand for by-election.

Glenn BarryOctober 28, 2017 at 9:14 am

Look like Malcolm Turnbull’s infamous complete lack of judgement has been exhibited in the biggest event of the century, it also calls into serious question the competence of both George Brandis and the recently appointed Solicitor General Dr Stephen Donaghue

@helvityni – I saw Amanda Vanstone on the drum – I recall loathing her from when she was in parliament, though having long forgotten the reasons why, last night was a stark reminder of those reasons – she is vile and somewhat reminiscent of Scott Morrison in the way she talks at people so agressively

paul walterOctober 28, 2017 at 12:57 pm

Bullseye, Glen Barry!

You can smell the stench of hubris from here.

paul walterOctober 28, 2017 at 1:02 pm

Yep Helvi. Baird has been in much better form, with a couple of meaty news days to feed the Drum.

Vanstone tried it on just once too often and Baird, who doesn’t like being talked over the top of, was too quick for her, handballing to the lawyer on that final, trenchant comment for the show.

Glenn BarryOctober 28, 2017 at 1:14 pm

@ paul walter – curious phenomenon – why does LNP hubris evoke the same reaction in me as when I’ve just trodden in a fresh pupper doggo land mine?

paul walterOctober 28, 2017 at 7:21 pm

Because you have learned the meaning of evil.

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Michael JordanOctober 27, 2017 at 6:55 am

Government overreach is out of control.

And today, we heard the Turnbull Government might be using the Department of Foreign Affairs to help Adani secure overseas finance for its Carmichael mega-mine.

It’s part of this government’s disturbing pattern of targeting its perceived enemies and propping up its corporate friends. So who’s policing the politicians, who have more power and potential for corruption than anyone?

We need a federal anti-corruption watchdog – like the ones in our state governments – to keep our national politicians honest and always acting in the best interest of everyday people.

https://www.getup.org.au/campaigns/democracy/federal-icac-1/who-s-policing-the-pollies?
Ella millerOctober 27, 2017 at 7:13 am

Mr. Lord, hope you have a good break. Always appreciate your informative pieces.

The past few days have been a sickening example of how low our political class can sink. How stupid do they think we are?
Watching Question Time I have been sickened by the determined effort to destroy Bill Shorten’s reputation.The half-truths, the outright deceptive statements not to mention the desperation.

Now minister Cash…they must think we came down in the last shower.
Well, LNP we have not. We can smell a rat and having the Aim Network to clarify issues is invaluable.
The last few days have brought back to me, my dear fathers saying…. ” Don’t dig a grave for someone else because you will end up falling it.”
The arrogance of Minister Cash, refusing to turn up today to the Senate.
The outright deceptive statement, that the meeting before QT with the PM did not include a discussion on how to deal with the mess they have created.
LOL….we do NOT believe any of them.
wamOctober 27, 2017 at 7:14 am

Sadly, the only truth will be that of the LNP.

Have good break and we will reflect on how to question the truth as believed by journalists, politicians, jews, christians, muslims and extremists of each.

What is the truth in may, might, could, should, possibly, probably, believe it to be, would have been?
ps
Labor cannot access the morning shows to mention the millions wasted on commissions. The pink batts achieved nothing but the pink batts are still anti gillard.
MattsOctober 27, 2017 at 7:17 am

Mr Lord, I happened to hear Pyne in parliament and he in fact reeled off quite a list of findings by the royal commission into the unions. There seem to be questions hanging over the CFMEU
Terry2October 27, 2017 at 7:54 am

Thanks John.

Whilst Michaelia has gone into witness protection there is still one problem facing the government. David De Garis the sacked staffer who coordinated the media to be at the AWU offices has, as one commentator put it, been thrown under a bus and then taken to a railway station and thrown under a train and is now going to be investigated by the AFP which may get a bit confusing as he (or somebody) had been liaising with the AFP to coordinate the media scrum.

My head is spinning. I really don’t know how this government has the time to govern with all their machiavellian scheming ……………Oh, that’s right they don’t govern, do they.

Good luck with the move, John but you may have to report back for duty when the HIgh Court determinations are announced.

I hear that the High Court may adopt the Numpty approach with Joyce : this, in constitutional terms, means that the High Court will say that they don’t give a fig about Barnaby being a Kiwi but they will still rule him ineligible to be elected to high office based on the Numpty principle developed in Scottish law and meaning that he is a stupid or ineffectual person.
helvityniOctober 27, 2017 at 8:00 am

Cash, Hanson, Dutton, Barnaby… it’s all getting too ugly and negative….

John Lord, have a good well-earned break away from politics, I think we all need it…
Florence nee FedupOctober 27, 2017 at 8:07 am

Pyne has been reeling off for years much from TURC that is pure fantasy.

PM’s message to his team in spite of all that has happened this week, was to tell them to focus on union corruption.

AWU court action is the biggest danger to government today.
Möbius EckoOctober 27, 2017 at 8:09 am

Matts, the key item in your post is, “in parliament”.

Pyne, nor anyone else in government makes these accusations outside of the privilege of parliament. That should tell you something.

The cases against the union referred to the courts by the TURC have been thrown out. That should also tell you something.
BruceOctober 27, 2017 at 8:23 am

Make sure you all sign the Getup petition in Michael Jordan’s link above. I have.
Michael TaylorOctober 27, 2017 at 9:04 am

It’s a pity for John that he’ll be too busy today to hear of the High Court’s decision on Joyce et al. ?
Kaye LeeOctober 27, 2017 at 9:11 am

“During the stormy days of “Goanna” in 1984, when Turnbull ran Packer’s campaign to clear his name after The National Times published leaked case studies from the Costigan Royal Commission, he persuaded Packer to counter-attack with a “violent” (Turnbull’s word) public attack on royal commissioner Frank Costigan QC. In one of the most aggressive performances seen in Australia, Turnbull taunted Costigan to sue him – according to Justice David Hunt in the NSW Supreme Court, Turnbull accused Douglas Meagher QC and Costigan of being unjust, capricious, dishonest and malicious.

Turnbull had said Meagher, the counsel assisting the commission, had leaked the case studies which formed the basis of the “Goanna” allegations. The then National Times editor, Brian Toohey, told Good Weekend. “Douglas Meagher did not leak them to me nor did Frank Costigan. By the time I got the documents, they had been widely circulated at government level. I am astounded that people in the media like Packer and Turnbull so wildly and inaccurately pointed the finger at people when they didn’t have a clue. Had the defamation case [Packer sued Meagher] gone ahead, they would have gone on their neck unceremoniously.”

Packer was cleared in a statement by then Attorney General Lionel Bowen but Turnbull’s behaviour backfired. Packer’s defamation action was struck out as an abuse of process and there came a devastating attack on Turnbull by Justice Hunt who said he had managed “to poison the fountain of justice”.

Turnbull’s scorched-earth use of the media made him unpopular with elements in the NSW Bar and was a factor in his leaving. He later moved fulltime into merchant banking.”

http://www.smh.com.au/good-weekend/gw-classics/raging-turnbull-20140904-10c7ye.html
helvityniOctober 27, 2017 at 9:18 am

Michael, I don’t think that anything good will come from the High Court; I’m turning from an optimistic Pollyanna into a negative sourpuss… (It took two Liberal leaders, Tones and Mal )
Adrianne HaddowOctober 27, 2017 at 9:23 am

When is the next election, where is the Governor General, how do we get rid of these lying, corrupt, self-serving trough snufflers? Do we deserve the fascism that is served up as government by these inept puppets posing as politicians?
paul walterOctober 27, 2017 at 9:30 am

Completely deliberate and long planned assault on the unions as part of a process to undermine resistance to command authoritarianism.

Has been ignored in the morning news as they desperately seek a diversion in the form of the high court decision, which will probably be rigged in favour of the conservatives.
245179October 27, 2017 at 9:37 am

Dissolve the govt, we go to the polls, we send the same muppits back to canberra………hello
Joseph CarliOctober 27, 2017 at 9:58 am

I’ll make a prog’ on the high court decision..though I wouldn’t put money on it..but I reckon, based on my suspicion of many of these decisions coming from a combination of “old school tie” and “consciousness of kind” sympathy, Barnaby Joyce and Larissa Waters will be let off, and the others sacrificed as a kind of compensation for there being no risk of bringing down the conservative government.
But that’s just my opinion..I hope I am proved wrong.
IPA is an associated entityOctober 27, 2017 at 10:01 am

Please re-caption the photo that starts the piece. “I told a whopper today and it was this big”.
lawrencewinderOctober 27, 2017 at 10:06 am

I completely disagree with the idea of letting this rabble off-the-hook. They have been the worst and most serious offenders in mangling the democratic process. They have 85% of the media behind them covering their tracks and obfuscating their wrongdoings and need a series of lessons to experience, with interest the blowtorch they apply to others …and in this I include the malign voices of Devine, Jones, Hadley, Bolt, et al, who daily, lie and promote the destruction of democracy. Let them feel the heat for once.

http://shanewombat.blogspot.com.au/2017/10/from-sublime-to.html
Joseph CarliOctober 27, 2017 at 10:10 am

” His (Giddings) most significant contribution is the concept of the consciousness of kind, which is a state of mind whereby one conscious being recognizes another as being of like mind. All human motives organize themselves around consciousness of kind as a determining principle. Association leads to conflict which leads to consciousness of kind through communication, imitation, toleration, co-operation, and alliance. Eventually the group achieves a self-consciousness of its own (as opposed to individual self-consciousness) from which traditions and social values can arise.”…(wiki’)
Michael TaylorOctober 27, 2017 at 10:19 am

Despite all the speculation around the High Court case, the law is the law and the one place that will uphold the law is the High Court. They will not be swayed by bullshit.

I’m expecting that all seven of the politicians will be found to be dual citizens.

If not, we may as well throw away that section of the Constitution, otherwise it will be forever ‘manipulated’. The precedent will have been set.
Joseph CarliOctober 27, 2017 at 10:23 am

” They will not be swayed by bullshit.”….I don’t know…have you never been to the Happy Hour down at “The Saracen’s Head” (the favoured watering-hole for the legal fraternity in Adelaide City).
crypt0October 27, 2017 at 10:29 am

“it (an ALP government) should avoid doing so (exposing Ashbygate to the hard light of day) , and just govern ”
I disagree entirely.
Following this course of action merely takes us back to where we are now …
AFP raids, ROC investigations, ABCC actions, , etc all aimed at the left(ish) side of politics.
Meanwhile the conservative right lie wilfully and often in the parliament and MSM … why ?
Because they know there will be no consequences.
As Lawrence said …
Let them feel the heat for once.
Enjoy the break, John … you’ve earned it.
Matters NotOctober 27, 2017 at 10:37 am

What MT said. It’s a Court with 7 Judges, four of whom were appointed by the ‘conservatives’. Conservatives do not like activist judges. Prefer strict constructionists. The wording of the relevant section is crystal clear.

That ‘ignorance’ is a valid excuse would be a bridge too far. (Please Sir I didn’t realise I was drunk at the time …. )

Judge them by the outcome, not by their intentions or ignorance. If change is needed to the Constitution then there is a avenue available. Conservative Judges avoid making the law,
Frank SmithOctober 27, 2017 at 10:44 am

Yes, Senator Cash has “gone into witness protection” and over at Senate Estimates today Bookends Brandis is doing his damnest to make sure no further questions can be asked because these are matters being investigated by the AFP. He also expects us to believe that neither he nor his Office have had any discussions with the Prime Minister’s Office on the matter this morning. How daft do these arrogant “born-to-rules” expect we voters are?

Cash has considerable form in attacking Opposition Leaders. This is illustrated in this screaming rant which expands on the image that John has used to headline this article:
Peter FOctober 27, 2017 at 10:45 am

MT, I agree with you.I expect that the High Court will see the danger of setting a precedent which has the potential for manipulation.
Joseph CarliOctober 27, 2017 at 11:02 am

Of course…there is the politics of the High Court to consider..

“Greater stability

As the two-party system solidified and majority governments became the norm at the commonwealth level, there was no real call on the Governor-General to exercise reserve powers and therefore, no need for constitutional advice.

This did not mean that High Court justices were necessarily more circumspect about giving advice. Sir John Latham, for example, while Chief Justice of the High Court, apparently advised the prime minister on the drafting of a referendum to overturn the High Court’s judgment in the Communist Party case.

The next occasion for the exercise of reserve powers at the national level did not arise until the Prime Minister, Harold Holt, went missing in 1967. The Governor-General, having taken advice from the chief justice, Sir Garfield Barwick, exercised his reserve power to terminate Harold Holt’s commission as prime minister and appoint John McEwen until a new Liberal leader could be chosen.
Stately advice

In the meantime, at the state level, constitutional crises still abounded and advice was regularly given to governors by judges. In 1932, the NSW governor received advice from the NSW Chief Justice on dismissing the Lang Government, just as in 1927 his predecessor had received the Chief Justice’s advice on his reserve powers concerning the dissolution of Parliament and the “swamping” of the upper House.

In 1939, the next Chief Justice of the NSW Supreme Court advised the governor about a constitutional crisis involving the defeat of the government on a financial measure.

In Victoria, political instability and constitutional crises extended into the 1950s. In 1952, for example, the chief justice of the High Court, Sir Owen Dixon, along with the Chief Justice of the Victorian Supreme Court, advised the governor about a conflict very similar to 1975.

Labor, with the support of break-away Liberals, blocked supply in the upper House. The Governor refused the Country Party premier an election because supply would have run out during the election period. A new premier was commissioned, who managed to pass supply in the upper House but was then defeated in the lower House.

It was Sir Owen Dixon who advised the Governor to restore the former premier and grant him an election.

In 1955, Dixon again advised the Governor on how to deal with a government that was running out of supply but not prepared to recall Parliament and face a vote of no confidence.

Dixon also advised the Western Australian governor in 1956 and 1961 on other constitutional crises.” https://theconversation.com/masons-role-in-the-1975-dismissal-unprecedented-hardly-9174
SGBOctober 27, 2017 at 11:36 am

I bring your attention to.a legal principle that will let Joyce and possibly others off the hook.

mens rea
Also found in: Dictionary, Thesaurus, Medical, Acronyms,Wikipedia.

Mens Rea

As an element of criminal responsibility, a guilty mind; a guilty or wrongful purpose; a criminal intent. Guilty knowledge and wilfulness.

A fundamental principle of Criminal Law is that a crime consists of both a mental and a physical element. Mens rea, a person’s awareness of the fact that his or her conduct is criminal, is the mental element, and actus reus, the act itself, is the physical element.

The concept of mens rea developed in England during the latter part of the common-law era (about the year 1600) when judges began to hold that an act alone could not create criminal liability unless it was accompanied by a guilty state of mind. The degree of mens rea required for a particular common-law crime varied. Murder, for example, required a malicious state of mind, whereas Larcenyrequired a felonious state of mind.
Michael TaylorOctober 27, 2017 at 11:41 am

SGB, Mens rea applies only to criminal law. In this case, it is not a criminal matter as no crime has been committed.
KronomexOctober 27, 2017 at 11:44 am

Cash should be forced to step down until the investigation is completed –

http://www.smh.com.au/federal-politics/political-news/australian-federal-police-launch-investigation-into-media-tipoffs-ahead-of-awu-raids-20171026-gz99va.html
jimOctober 27, 2017 at 11:57 am

“Tony Abbott set up a Royal Commission into Trade Unions (or the Labor Party), and another one into the Home Insulation Program”

And what gets me goat is that the LNP are allowed to take back more money from the RC into child abuse (set up by Labor) and give it to the RC into the unions but leave out including businesses, no businesses ever break the rules .
LNP protecting pedephiles now why is that?. wasn’t the mr Pell at the LNPs IPA meetings ?
OPPOSE THE MAJOUR PARTIESOctober 27, 2017 at 11:59 am

Why all but Mr X will likely be found to be disqualified. Re HC decision today. In the event that an application of a provision (such as s 44 in the Constitution) results in an ambiguous result, the purposive approach to statutory interpretation must be applied. That is both statutory and common law in Australia and in the UK. Applying the purposive approach to statutory interpretation means the Court can consider extraneous or extrinsic materials and documents. In other words, the court must go outside the literal text of the provision to understand the intention of the drafter of the provision. In this case, those documents will be the records and explanatory memoranda etc of the Constitutional Conventions and any speeches made in Parliament etc. Engaging that approach, the HC Court will find that the intention of the drafter in s 44 is to prevent the risk of parliamentarians having divided loyalties and, as a matter of fact, dual citizens necessarily have divided loyalties. Thus, it is simply a question of fact – is this parliamentarian a dual citizen? If so, they are ineligible. Hence, they will all be found ineligible other than Mr X because being a British Overseas Citizen requires that someone needs to apply for it and, in any event, it bestows no rights and privileges. All Australians born before a cut off year in the 1980’s can apply to be British Overseas Citizens including myself and I am an 8th generation Australian descended from a first fleeter! Mr X has not done so and, hence, as a matter of fact, he is not a British subject or citizen and does not have divided loyalties. Mr X will survive. On this interpretation, the legal advice of SG Donaghue and AG Brandis (and of Turnball) was wrong and the matter has been a waste of the High Court’s time and should have been dealt with in parliament by the impugned parliamentarians being dismissed or resigning. Of course ‘the great legal minds’ of Brandis and Donaghue (and Turnbull) should be expected to know this but apparently they did not. Hence, cost orders should be made against Brandis and the SG personally for wasting the Court’s time and for bringing a case without prospects of success and not born by the people through the Cth. But of course the HC wont make that cost order. In the light of this, the whole HC citizenship saga has been a ruse and an abuse of the legal system being solely motivated to preserve the Turnbull government’s majority in the House of Reps to get its legislation though. That has been its only, albeit, improper, purpose
John O'CallaghanOctober 27, 2017 at 12:20 pm

So Turnbull is calling in the AFP to investigate the AFP…. yea that should work out well!!
Joe RoskellOctober 27, 2017 at 12:55 pm

I understand the moral argument, BUT how can we countenance the continuation of the corruption within our body politic? If Labor do not root it out of the LNP and Big Business then it will continue to fester. I really believe that Labor SHOULD go after the LNP and clean out the corrupt politicians. Go after Murdoch and the IPA and expose the links and regulate them properly. If they don’t it will be business as usual. The one caveat I make is that go after them, go hard and go EARLY in the term.
http://www.smh.com.au/nsw/calls-for-investigation-into-national-party-president-larry-anthonys-lobbying-firm-sas-group-20170930-gyrxkz.html
BertOctober 27, 2017 at 1:29 pm

Michael Jordan wrote
“We need a federal anti-corruption watchdog – like the ones in our state governments – to keep our national politicians honest and always acting in the best interest of everyday people.”

I couldn’t agree more but any such organisation needs real teeth and the introduction of heavy penalties. Most goverments seem to have a thing about mandatory sentencing lately so for malfeasance in political office a mandatory 25 years for all levels of government with no parole and multiple thousands in fines
jimOctober 27, 2017 at 1:40 pm

Great Q&A ABC by Chris Bowen ; The states have just BOOTED LNP federal treasurer scoti More a sin out of state treasury affairs KICK THIS MOB OUT and while your at it DITCH the WITCH in a Cash bag at sea. They have gone too far.

btw just signed up to Getup.org 4free.
Michael TaylorOctober 27, 2017 at 1:43 pm

Ah, OTMP, you’ve hit the nail on the head: the explanatory memoranda.

It’s the first thing we went to – as well as speeches made in Parliament – when trying to get to the intent of a piece of legislation (or amendments) when, in my case, I was working in social security legislation and litigation.

We still had trouble … lawyers from various departments would interpret the law differently. I’m sure it’ll be the same in the High Court.
Michael TaylorOctober 27, 2017 at 2:21 pm

Joyce is gone. All are gone accept Canavan and Mr X.
Peter FOctober 27, 2017 at 2:21 pm

J O’C calling on the AFP to investigate does sop all embarrassing questions, as has already been shown.
paul walterOctober 27, 2017 at 2:28 pm

Michael Taylor, re earlier comment. The law it self is bullshit. They are myopically forced to uphold bullshit.

If Ludlum kicked out while the resignation of Cash would be “unreasonable”, according to Xylophone, there has developed a very “Alice in Wonderland” aspect to these events.
paul walterOctober 27, 2017 at 2:31 pm

Law counters Justice.

Michael, just spotted your comment re high Court. As I predicted, the ones that should have gone have stayed and (some of) the better ones gone. Am consoled at partially predicting it and repulsed at the monumental native imbecility of it.

Nobel Prize for Murphy.
jimhazOctober 27, 2017 at 2:35 pm

That is sad is relation to Canavan.. he is dangerous as he thinks in a similar fashion to Abbott, but I suspect long term he will end up in jail.
Michael TaylorOctober 27, 2017 at 2:37 pm

Paul, the “bullshit” comment was in reference to all the crap that Brandis, Turnbull and the coalition’s lawyers have been putting forward. The High Court would have ignored it.

Turns out they did. ?
paul walterOctober 27, 2017 at 2:45 pm

It’s ok, mate…I tire of the way politics emanates lately and off for a walk to buy some some dinner. I’m not cross with you, quite the opposite.

But Brandis, Turnbull and many others are odious. If we had a dollar for everytime they had proven it we could probably retire to the Sunshine Coast.

Wait a minute..it DOES mean that Fiona and Barnaby have gone and the idiot Roberts…maybe not so bad…justice corrupting the law, as with Cash.
paul walterOctober 27, 2017 at 2:46 pm

Serves them right for preferring to be poms to aussies.
nurses1968October 27, 2017 at 2:47 pm

Barnaby will enjoy a little break till a by election early in december and waltz right back in.Apparently polls in New England have him at 60%
If nothing else it is nice that he did get busted
Möbius EckoOctober 27, 2017 at 2:47 pm

“Joyce is gone.”

Now we need to see how the three-month rule is interpreted. The way I read it, it’s from the time he became a member of parliament, but some are saying it’s from the time of this ruling.

This is important because the polls show Joyce will win the by-election easily, though by-elections are notorious for going against expectations. So if the three-month rule is invoked from the time Joyce became a member, then it means every decision and vote he made since that date and the date of his re-election is invalid.
Michael TaylorOctober 27, 2017 at 2:50 pm

Joyce said that he had it in his mind that he’d be ruled ineligible. Why then didn’t he stand down? Why?
paul walterOctober 27, 2017 at 2:52 pm

Looking after vested interests to pay for the bribes.
paul walterOctober 27, 2017 at 2:58 pm

Watching the ABC at moment, it is like viewing a pictorialised version of Rossini’s “ThIeving Magpie”.

“Where’s the ring….WHERE’S THE RING!!”.
KyranOctober 27, 2017 at 2:59 pm

Not as good as hoped for, but it puts the machinations of the Nats into perspective. In addition to bananas dalliance, there has been talk of the inland rail ‘pork barrelling’ and the matter of the Murray Darling fund, all of which were, apparently, Nat’s jockeying for position.

http://www.abc.net.au/news/2017-10-25/nationals-brawling-over-inland-rail-ahead-of-high-court-ruling/9084190

That ‘agreement’ between talcum and bananas, what happens to that now? Joyce is gone and the bye-election is unlikely before December 2nd. Parliament sits from November 13-30. Nash (Nat) is to be replaced by Hollie Hollis, a Liberal. Will the Nats lose cabinet positions? Ministries? Will talcum reshuffle his cabinet now or after December 2?
And, just for fun, will GetUp have a play in New England? Will bananas be Kiwi of the Year?
Then there are the little things, like running the country.
Thank you Mr Lord and commenters. Take care
Joseph CarliOctober 27, 2017 at 3:17 pm

So glad to be proven wrong!…
JackOctober 27, 2017 at 3:20 pm

I don’t like/dislike Joyce anymore or less than the other wafflers, but if one of your parents emigrate here before you were born, its stupid that this makes you ineligible to run for parliament.
I know the law is the law, but this just doesn’t survive the pub test.
Another great waste of money by OZ along with the SSM vote.
We just keep outdoing ourselves
jimhazOctober 27, 2017 at 3:37 pm

[Another great waste of money by OZ along with the SSM vote]

It is rather nice though that now the Nationals have to spend money to win a by-election – though maybe Gina will bankroll it seeing as he is her boy.
Möbius EckoOctober 27, 2017 at 3:43 pm

So far not a single reporter or media outlet has pulled Turnbull on his statement when this citizenship conflict blew up. That is that he preempted the High Court and said emphatically that they would find in favour of his L-NP members. Some rightly pointed out at the time he was circumspectly telling the court what to rule in this case, but he only singled out that ruling for the L-NP.

I hope someone throws that back in his currently smirking face.
OPPOSE THE MAJOUR PARTIESOctober 27, 2017 at 3:53 pm

Michael Taylor. “Ah, OTMP, you’ve hit the nail on the head: the explanatory memoranda.

It’s the first thing we went to – as well as speeches made in Parliament – when trying to get to the intent of a piece of legislation (or amendments) when, in my case, I was working in social security legislation and litigation.

We still had trouble … lawyers from various departments would interpret the law differently. I’m sure it’ll be the same in the High Court.”

I said on another post that I could sum it up in one paragraph and for the very large part that is what I did. The purposive approach to statutory construction which enables extraneous materials such as explanatory memoranda etc to be considered to determine the intention behind legislation is actually the law in Aust and UK. Regardless of whether a judge is ‘conservative’ or more ‘liberal’ that approach must be applied. I know that but many lawyers obviously don’t.

Most lawyers have no idea…I should know, I have dealt with them for numerous years. Training is very bad. Essentially, they only need a 50% pass to get an LLB and most lawyers progress through the ranks of the profession by their nepotistic connections not on merit. Fortunately, I paid attention at Law School and actually studied. Most don’t.

So I got 6 out of 7 right, which is more than SC Donaghue, AG Brandis QC and barrister Turnbull did and they are running the country. Which reflects on many things. How Turnbull can be a successful barrister and Brandis a QC is beyond me frankly. If they were surgeons you would not put your life in their hands. I should have refrained from predicting the outcome of Cavanagh because I did not really know all the accurate facts in that matter given he changed his story several times. Donaghue should be dismissed immediately. His advice was not only poor but obviously bias and contrary to law and has cost the country money.

Thanks for your vote of confidence
Terry2October 27, 2017 at 3:55 pm

We should all celebrate the fact that Malcolm Roberts will never again darken the portals of our parliament : it’s empirical in its wisdom.

Barnaby will be back before Christmas it seems but in the meantime Nigel Scullion is the Leader of the Nationals….Oh Dear !
Michael TaylorOctober 27, 2017 at 4:05 pm

Brandis was quick to suggest that Ludlum should pay back his salary when he outed himself all those months ago.

I would expect the same standards to apply to Joyce.
Michael TaylorOctober 27, 2017 at 4:18 pm

Turnbull has flagged the possibility of changes to section 44 of the constitution.

Oh, how predictable.
OPPOSE THE MAJOUR PARTIESOctober 27, 2017 at 4:20 pm

Terry2. ‘We should all celebrate the fact that Malcolm Roberts will never again darken the portals of our parliament: it’s empirical in its wisdom’. Don’t count ur chickens. Alienboy will be back causing havoc in Qld state politics for One Nation next year and then he can move back to Fed politics. But I don’t think he will come back federally as he is only really after a cushy job with a big wage and state politics pays as much as Fed and is a lot easier
Möbius EckoOctober 27, 2017 at 4:39 pm

https://pbs.twimg.com/media/DNHgfcwVAAAqTKi.jpg
Matters NotOctober 27, 2017 at 4:44 pm

Re possibility to change the Constitution. Good luck with that. Here’s some history.

http://www.aec.gov.au/Elections/referendums/Referendum_Dates_and_Results.htm

Besides, the major Parties don’t seem to have any problems. Also Turnbull has no political capital to waste.
Frank SmithOctober 27, 2017 at 5:11 pm

Turnbull takes over Agriculture and Water. Is he immediately going to go after those corporate farmers around Bourke stealing Murray/Darling water?

Malcolm Roberts, who was a Queensland Senator by virtue of just 77 primary votes, is now threatening to take his empirical evidence campaign to the seat of Ipswich. – a Labor seat held by Jennifer Howard, a rather popular member – perhaps Roberts will win because he “believes he is the member”.
OPPOSE THE MAJOUR PARTIESOctober 27, 2017 at 5:21 pm

Why my post above was correct.The Court did exactly as I said it would in looking to extraneous materials outside the legislation to discern the intention of the drafters of s 44. Yet Donaghue, Brandis and Turnbull all got it wrong. Obviously the whole exercise was a ruse to allow Turnbull’s LNP to maintain the numbers in the Parliament to push through its draconic laws. You think you live in a democracy?Think again.

Here’s the High Court’s ratio descidendo (binding reasoning) in its REASONS FOR DECISION.

The approach urged by the amicus and on behalf of Mr Windsor must be
accepted. It adheres most closely to the ordinary and natural meaning of the
language of s 44(i). It also accords with the views of a majority of the Justices in
Sykes v Cleary, the authority of which was accepted by all parties. A
consideration of the drafting history of s 44(i) does not warrant a different
conclusion.

The Text and Structure of s 44(i)

…..

The Purpose of s 44(i)

In Sykes v Cleary, the plurality, comprising Mason CJ, Toohey and
McHugh JJ, said that s 44(i) was adopted to ensure “that members of Parliament
did not have a split allegiance”11. Brennan J explained that the purpose of s 44(i)
“is to ensure that no candidate, senator or member of the House of
Representatives owes allegiance or obedience to a foreign power or adheres to a
foreign power.”12Deane J said that the “whole purpose” of s 44(i) is to “prevent
persons with foreign loyalties or obligations from being members of the
Australian Parliament.”13

It is evident that the first limb of s 44(i) pursues this purpose by looking to
the conduct of the person concerned. The second limb of s 44(i) does not look to
conduct manifesting an actual split in the allegiance of the person concerned or
the person’s subjective feelings of allegiance. On the contrary, it operates to
disqualify the candidate whether or not the candidate is, in fact, minded to act
upon his or her duty of allegiance.

In the course of arguing that a candidate cannot be disqualified by the
second limb of s 44(i) if he or she does not know that he or she has the status of a
foreign citizen, Senior Counsel for Mr Joyce MP and Senator Nash made the
rhetorical point that “[y]ou cannot heed a call that you cannot hear and you will
not hear the call of another citizenship if you do not know you are a citizen of
that other country.” The answer to that point is that, as a matter of the ordinary
meaning of the second limb of s 44(i), proof of actual allegiance as a state of
mind is not required. Rather, as Brennan J explained in Sykes v Cleary, the
second limb is concerned with the existence of a duty to a foreign power as an
aspect of the status of citizenship.

The Drafting History of s 44(i)

The drafting history of s 44(i) does not support identification of a
narrower purpose sufficient to constrain the ordinary and natural meaning of the
language ultimately chosen.

The first official draft of the Constitution Bill prepared for the National
Australasian Convention in 1891 contained two identical clauses which provided
respectively that the place of a senator and a member of the House of
Representatives “shall become vacant … [i]f he takes an oath or makes a
declaration or acknowledgement of allegiance, obedience, or adherence to a
Foreign Power, or does any act whereby he becomes a subject or citizen, or
entitled to the rights or privileges of a subject or citizen of a Foreign Power”15
.
The language was derived from the British North America Act 1840 (Imp)16 as
replicated in the New Zealand Constitution Act 1852 (Imp)17 and the
British North America Act 1867 (Imp)18 and as substantially replicated in the
constitutions of each of the Australian colonies which were to become States19

Within a week of the first official draft, following the voyage of the
Lucinda, the two clauses were recast to take the form in which the predecessors
of ss 44(i) and 45(i) came to be adopted without substantial debate in the final
draft of the Constitution Bill to emerge from the National Australasian
Convention in 1891. The clauses as so recast each applied to both senators and
members of the House of Representatives. Departing from the Imperial and
colonial precedents, they were no longer confined to vacating places of
parliamentarians by reference to acts done by them after election. They extended
also to disqualifying for election as parliamentarians persons who had done any
of the same acts before election.
Pete PetrassOctober 27, 2017 at 10:09 pm

And I have no doubt Cash’s sacrificial lamb will, after an appropriate holiday period, turn up somewhere in a higher paying cushy government job as a promotion.
paul walterOctober 27, 2017 at 11:26 pm

Back for other read. The more I read the more I feel ill at these sorts of individuals in charge of our individual and collective futures..

I mean, just how deranged is Malcolm Turnbull? All on that side of politics, in fact.
SGBOctober 28, 2017 at 6:45 am

Glad I was wrong too, but truly I had serious misgivings.
Möbius EckoOctober 28, 2017 at 7:28 am

Pete Petrass, that’s exactly what happened with several of Howard’s staff who took the fall for him over children overboard and other matters. Howard was the first PM to have a large firewall of staff around him. The incongruity of Howard was the fact he frequently stated he takes full responsibility for his actions but he never did. He, like the current mob, constantly blamed others for his failings or let others take the fall.

Another example is the AWB. That board walked away after the AFP inexplicably dropped their investigation.
helvityniOctober 28, 2017 at 8:02 am

Loud-mouth, demanding American tourists used to be called Ugly Americans….

Looking at the at the picture in the Möbius Ecko’s post, I’d call them Ugly Australians; never mind the outer, what’s inside is the deciding factor in this ‘beauty’ competition…
helvityniOctober 28, 2017 at 8:09 am

paul walter, did you see Amanda Vanstone throw a tantrum on the Drum yesterday, accusing that nice legal bloke of constant interruptions…

He did no such thing, the shouting interrupter was Amanda herself…talk loudly and fast, and blame someone else for your failings: the Liberal mantra.
Florence nee FedupOctober 28, 2017 at 8:29 am

There is only one change needed for S44 in the constitution. Those found guilty of signing statutory declaration they are not duel citizens be illegible to nominate for the seat made vacant by their actions. This happens in upper house. Why not lower.

Joyce shouldn’t be allow to stand for by-election.
Glenn BarryOctober 28, 2017 at 9:14 am

Look like Malcolm Turnbull’s infamous complete lack of judgement has been exhibited in the biggest event of the century, it also calls into serious question the competence of both George Brandis and the recently appointed Solicitor General Dr Stephen Donaghue

@helvityni – I saw Amanda Vanstone on the drum – I recall loathing her from when she was in parliament, though having long forgotten the reasons why, last night was a stark reminder of those reasons – she is vile and somewhat reminiscent of Scott Morrison in the way she talks at people so agressively
paul walterOctober 28, 2017 at 12:57 pm

Bullseye, Glen Barry!

You can smell the stench of hubris from here.
paul walterOctober 28, 2017 at 1:02 pm

Yep Helvi. Baird has been in much better form, with a couple of meaty news days to feed the Drum.

Vanstone tried it on just once too often and Baird, who doesn’t like being talked over the top of, was too quick for her, handballing to the lawyer on that final, trenchant comment for the show.
Glenn BarryOctober 28, 2017 at 1:14 pm

@ paul walter – curious phenomenon – why does LNP hubris evoke the same reaction in me as when I’ve just trodden in a fresh pupper doggo land mine?
paul walterOctober 28, 2017 at 7:21 pm

Because you have learned the meaning of evil.

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