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Should Parliament be Prorogued?

There was a suggestion on ABCs Insiders yesterday Sunday that, due to the present chaotic state of government brought about primarily by Section 44 of the constitution, parliament should be prorogued.

What does this mean? Prorogation of parliament simply means bring the current session to an end. It does not mean an election follows. Only when parliament is dissolved can an election be held. However, prorogation does mean that no legislation can proceed because when a parliament is prorogued, it cannot meet.

This is important at the moment because the legitimacy of several members that we know of, is in question and more might yet be in question. The issue of dual citizenship has cast a cloud over the legitimacy of legislation passed or intending to be passed.

Until this matter can be properly resolved, any legislation or any major decisions made by members, particularly members who are ministers, can be the subject of a High Court challenge.

Thus, the decision by the Prime Minister, Malcolm Turnbull, to allow Deputy Prime Minister Barnaby Joyce to remain in his ministerial role is fraught with danger. Section 44 of the Constitution is unambiguous. Any person holding the citizenship of another country is not eligible to be in parliament. Therefore any member whose citizenship makes their election invalid should not be permitted to vote on any issue.

All subsequent claims by those affected that they did not know, that they only have loyalty to Australia, that it wasn’t of their doing, that it was their mother’s fault or their father’s fault, that it was another country’s fault and so on, ignores one basic premise, namely, that ignorance of the law is no excuse.

Frankly, the excuses offered by all, except the two Greens senators, have been pathetic. Thus, if the government wants to avoid lengthy High Court complications that might, even now, see a number of legislative items overturned, it should prorogue parliament right now.

Parliament should not sit again until such time as matters relevant to Section 44 are resolved. Better still, dissolve parliament and call an election. Thus, any candidate who cannot verify that they are not a citizen of another country, cannot stand.

It’s not rocket science!


31 comments

  1. Owen

    The GG is very quiet ..
    He needs to make a statement..I agree until the constitutional matters are resolved, parliament could be adding unfair costs to taxpayers as any potential legislation could be in breach of the constitution Subject to expensive litigation.. The constitution is as I see unambiguous..The court should rule in accordance with the intent of the constitution not the Government’s interpretation…

  2. Jaquix

    I understand that Bill Shorten has said he will cooperate with the government over getting non-controversial legislation through, on condition that Joyce and Nash resign their ministerial responsibilities. Seems fair enough to me, though the female political report from the ABC added a snarky little comment at the end saying Bill Shorten might be making mischief. Uncalled for, I thought. Even if the offer is political, everything about this situation is political, and at least it offers a reasonable way forward, especially as the High Court decisions are not expected for at least 2 months.

  3. wam

    Wow John. it certainly isn’t rocket science, just media hype and loony drivel.

    It is correct that the overseas born pair have resigned because they are dual citizens as is cavanan but xeno, nash, joyce are Australian born. QED.

    The damage that the prorogue process could do makes the risk worth taking and to old anarchists the wrong decision by the old judges could %@@^ – up the system in courts for months.

  4. Peter F

    @wam … You appear to be making a legal judgment about Australian born dual citizens. Do you think it would stand up in court?

  5. Karen Smith

    Currently, all a prorogue would do is halt any legislation being passed including but not limited to legalising same sex marriage. Would they stoop so low. The answer is yes.
    Furthermore, Turdball allowing Joyce to remain in parliament should be enough for the people to raise further serious questions about his ability to lead this country. If this was the ALP allowing this to happen the LNP would want nothing short of blood.
    Any person wanting to be in parliament should be doing THEIR due diligence in making sure they have done all the proper checks and balances to ensure that they can indeed enter into parliament.

  6. Ross

    It’s about time the constitutional head of Australia stepped in and sorted this farce out.
    Get Betty out here, have our politicians prostrate themselves on the parquetry and explain to the senior headmistress why they should not have six of the best pants down. Phil can come too for the comic relief.

  7. Hettie Lynch

    Owen, do not expect this GG to do anythingat all. Far less anything to the detriment of this sorry excuse for a government.
    Speaking to the article, with which I agree, I would add :-
    It would be relatively simple to compile a database of all nations on Earth, listing their citizenship laws.
    Does taking another citizenship automatically extinguish the birth citizenship? If so, no problem.
    Do they confer citizenship by descent?
    Is that automatic, or must it be applied for?
    Note that all nations everywhere require that a passport must be applied for. That requirement does NOT mean that citizenship must also be applied for.
    If decent confers citizenship, is it from father only, mother only, either,
    grandparents?
    If there is an entitlement, but the citizenship must be applied for, what is the procedure?
    And, importantly, how may citizenship or the entitlement to citizenship be renounced.
    Next, all current sitting members must produce their birth certificates, certificate of naturalisation if applicable, anf their parents’ birth certificates, so that all possible citizenship can be checked.
    A matter of minutes for a well constructed database enquiry.
    Those with dual, triple – it could be as many as eight citizenships!, are not eligible to sit in Federal Parliament .
    Unless they can produce ORIGINAL documents proving they have renounced all entitlement to any othe citizenship.
    Unless the High Court rules otherwise, and it’s hard to see how they could.
    All future nominees for the parliament would be required to produce the 3 birth certificates, and proof of renunciation before the AEC accepts the nomination.
    It is not rocket science.

  8. Alan Luchetti

    John, it seems that legislation that would not have passed but for the vote of a parliamentarian who is subsequently disqualified will not be invalid. As Antony Green notes, the High Court addressed that question very early in the piece:

    “If a Senator is disqualified, can their votes on legislation be overturned?

    No. The High Court ruled in 1907 that the votes for a disqualified Member or Senator still stand. In a judgement in Vardon v O’Loghlin [1907] Justices Griffith, Barton and Higgins wrote that the election of a Senator later found invalid was one of three ways in which an election could fail. In that case –

    “… the return is regarded ex necessitate [of necessity] as valid for some purposes unless and until it is successfully impeached. Thus the proceedings of the Senate as a House of Parliament are not invalidated by the presence of a senator without title.”
    A Senator acts and votes as a Senator until the point where they resign or their position is declared void. A member of parliament’s past votes and position are not wiped from history at the point where they are declared not elected.

    NDP Senator Robert Wood was disqualified as a Senator by the High Court in 1988, but his term as a Senator elected at the 1987 double dissolution election is still recorded and his votes in the Senate on legislation still stand.”

    http://blogs.abc.net.au/antonygreen/2017/07/disqualified-senators-what-happens-to-their-votes-and-salaries.html

    The argument for prorogation is that precisely because you can’t close the gate after the horse has bolted you need to keep the gate closed to stop it from bolting.

    An alternative to prorogation would be an announcement by the GG that there would be no “royal assent” to any bill tainted by the vote of an MP in risk of disqualification. That would sufficiently cover the present situation as far as the legislature is concerned. As for the executive, perhaps the GG should inform the government which holds office at his pleasure that its commission is now on a caretaker footing pending resolution of the question of whether it has the confidence of the valid members of the House.

  9. stephengb2014

    When we consider that the average parliament sitting days per year since 1901 has been about 67!

    Prorogue is the only correct thong for thos government to recommend to the GG.

    Speaking of GG

    WHERE THE FCUK ATE YEH !

  10. townsvilleblog

    Yes, definitely should be prorogued because any legislation that has been passed with the assistance of these ineligible parliamentarians will be invalid and will need to go before the parliament again before it can be considered valid.

  11. Darren

    I can’t agree with this farce being “brought about by Section 44 of the constitution”.

    It has been brought about by people ignoring the section, not by the section itself. The ALP seems to have the right process in this regard by examining the citizenship of the candidate, their parents and their grandparents.

  12. lawrencewinder

    We need to march on Canberra. Depose the GG, proclaim a republic and call an election.

  13. jimhaz

    As a person who thinks we should be a Republic – I don’t want the GG involved. Keep such appointments out of our politics, unless necessary. This issue is not important enough – it is technical crap.

  14. townsvilleblog

    I agree vwith Darren, Section 44 has always been there and it has been used many times in the past, the “born to rule” arrogance of the tories has made them lazy and they take government for granted, this more than anything else has led to this constitutional crisis, the GG should prorogue the parliament, it is his job.

  15. Chris2017

    Parliament sitting is not necessarily a a requirement to governing, as Gough Whitlam and Lance Barnard showed many years ago. Hopefully an election with a referendum on SSM would create even more dislocation or a clear road to sound government.

  16. Ashley Kirkwood

    The Greens members stepped down a few weeks ago because they had to abide by the law. But it seems the Coalition are not as law abiding?

  17. John Kelly

    @wam, the constitution is unambiguous. It does not distinguish between those born here and those born in another country.

  18. Rhonda

    Indeed, John, pathetic is the word. As for the GG, what the fk blazes are we paying him for!? & Ross, above, thanks for the mental picture he he

  19. Umberto Ledfooti

    As things presently stand, the current LNP regime is ILLEGAL. Each time these foreigners enter the chamber, they commit an offense under section 89 (1) of the /Crimes Act 1914/ (Cth),

    Illegal parliamentarians who attempt to enter the chambers ought to be subject to citizen’s arrest and detained until an election can be held.

  20. wam

    Peter and John:
    my simple argument is:
    the loonies were born overseas ergo irresponsible for not checking
    cavanan applied for citizenship ergo stupid
    joyce, xenophon and nash were born here ergo the victims of the macho patrilineal law of a foreign government

    Arguably, then there are three different scenarios which vested interests in the media, labor and, especially the holier than thou dishybrandsimkims, try to treat as equal.(note the outcry here when roberts cites the abc bias because they don’t give equal time to antivaxers and flatearthers)

    The fact that sect 44 doesn’t differentiate is irrelevant because the judges could interpret the constitution as assuming born in Australia as a given and patrilineal citizenship as interference from a foreign country and not pertinent to 44

    The act says ‘entitled to’ well joyce et al is, arguably, not entitled to vote in nz unless he does a cavanan or enrols.

    On such evidence, my guess is the judges will find loonies and cavanan dual and the rest Australians by birth.

  21. Carol Taylor

    On the GG, “The functions of the Governor-General include appointing ministers, judges, and ambassadors; giving royal assent to legislation passed by Parliament; issuing writs for election; and bestowing Australian honours.”. The GG him or herself is appointed by the Queen on the advice of the Prime Minister. He/she is also the Commander-in-Chief of the Defence Force, although Tony Abbott thought otherwise. He/she issues writs for an election when told to do so by the Prime Minister and has no power to act independently. Therefore there is no point in blaming the GG for this current mess as he has no power to act even if he wanted to.

  22. kerri

    Pro rogueing parliament would be a sensible, face saving move for Turnbull, but after “Utegate” we all know Malcolm does not abide by “when you are in a hole stop digging” No Godwin Grech this time.

  23. Carol Taylor

    John, I would say that Turnbull is currently in a state of denial. He is also hoping and praying that the High Court will interpret Section 44 very broadly as to “intent”, did the person intend to be the citizen of another country? However The Constitution is quite clear that dual citizenship is only permissible when every effort has been taken to renounce that citizenship – some countries refuse to withdraw citizenship. Naturally the Court would require documentary evidence of the substantial effort taken, and no my mummy didn’t tell me isn’t good enough.

    To me it’s just plain egotism that has caused this, that along with declaring pecuniary interest, along with the rorting of travel expenses, that rules aren’t all that important.

    I agree, the only sensible thing to do would be for Turnbull to call an election.

  24. amethyst3009

    Ross:

    It’s about time the constitutional head of Australia stepped in and sorted this farce out.
    Get Betty out here, have our politicians prostrate themselves on the parquetry and explain to the senior headmistress why they should not have six of the best pants down. Phil can come too for the comic relief.

    Oh, this is the best comment about the ‘constitutional crisis’ ever. I’, literally crying. Brilliant!

  25. Andrew J. Smith

    One needs to be careful what you wish for e.g. prorogued parliament, versus govt. action for the nation vs. its own and others’ interests.

    Knowing where the LNP gets its ideology, tactics and strategy from; many US white conservative Christians and nativists (afraid of immigrants, liberals, democracy and ‘white genocide’) would be attracted to an unelected upper house e.g. House of Lords.

    Philip Adams on LNL some months ago had a guest, never heard of and went mostly unchellenged, who suggested that due to the chaos and gridlock of parliamentary democracy a council of respected elders was needed to be above democracy (!).

    Where have we seen this before, meanwhile one suspects that many conservatives, autocrats, oligarchs and related micro parties would prefer the e.g. IPA to an elected Senate?

  26. Matters Not

    Ashley Kirkwood re your comment:

    stepped down a few weeks ago because they had to abide by the law

    Perhaps. But maybe they stood down because of what they believed the law to be. And that’s fair enough but like in football the golden rule is play the whistle. In this case, the whistle is effectively a collective decision or interpretation made by the Judges in the High Court. Sure, precedence suggests that they guessed correctly and while Judges are guided by previous decisions, they are not bound by same. Sometimes they can do a complete backflip.

    In the US for example, the Supreme Court decided in the 19th century that the provision of separate but equal facilities was perfectly acceptable (Plessy v. Ferguson, 1896). Yet in 1954, the Supreme Court decided that separate provision by its very nature was unequal (Brown V. Board of Education Topeka.) It’s a good example of Judges making the law.

    The same could happen with our High Court but given who is sitting on the Bench and their record I suspect Turnbull’s optimism is misplaced. Then again, Turnbull had no other option. Optimism was his only choice, politically speaking. He hopes that the current High Court will remake the law as it currently stands.

  27. paul walter

    Most of them are already rogues. Find me some rope and we move to the second part.

  28. Barry

    Wam, I am possibly entitled to Irish citizenship through decent. Found this out by a 30 second quiz on the interweb. If I can find out so quickly and easily why can’t our illustrious leaders do the same? As has been stated else where ad infinitum, ignorance is NOT an excuse. Just my 2 bobs worth.

  29. halfbreeder

    Carol Taylor.”He/she issues writs for an election when told to do so by the Prime Minister and has no power to act independently. Therefore there is no point in blaming the GG for this current mess as he has no power to act even if he wanted to” Incorrect. There are such things as reserved powers. That is the power exercised against Whitlam in 1974. The GG certainly has the reserve power to dismiss the parliament and then issue writs for an election. If an election is called within two years of a double dissolution the new election must be another double dissolution. The LNP would be decimated if that occurred.

  30. halfbreeder

    https://www.gg.gov.au/governor-generals-role

    When exercising the executive power of the Commonwealth, in accordance with long established constitutional practice, the Governor-General acts on the advice of Ministers who are responsible to the Parliament. That advice is conveyed largely through the Federal Executive Council. The Governor-General presides at meetings of the Executive Council which are attended by at least two members of the Council.

    However, there are some powers which the Governor-General may, in certain circumstances, exercise without – or contrary to – ministerial advice. These are known as the reserve powers. While the reserve powers are not codified as such, they are generally agreed to at least include:

    The power to appoint a Prime Minister if an election has resulted in a ‘hung parliament’;
    The power to dismiss a Prime Minister where he or she has lost the confidence of the Parliament;
    The power to dismiss a Prime Minister or Minister when he or she is acting unlawfully; and
    The power to refuse to dissolve the House of Representatives despite a request from the Prime Minister.

    In addition, the Governor-General has a supervisory role to see that the processes of the Federal Executive Council are conducted lawfully and regularly.

    In essence then, the Governor-General’s role is to protect the Constitution and to facilitate the work of the Commonwealth Parliament and Government. For example, before giving assent to legislation, the Governor-General must be satisfied that the proposed law has passed both Houses of Parliament and that the necessary certification from the Attorney-General has been obtained.

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