Cross Post: Graham Young Is Sam Dastyari eligible to be a senator?

Under Section 44 of the Australian Constitution there is every chance that Sam Dastyari is inelegible to sit as a senator.

Section 44 says:

44. Any person who –

(i) Is under any acknowledgement of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or citizen of a foreign power: or

(ii) Is attainted of treason, or has been convicted and is under sentence, or subject to be sentenced, for any offence punishable under the law of the Commonwealth or of a State by imprisonment for one year or longer: or

(iii) Is an undischarged bankrupt or insolvent: or

(iv) Holds any office of profit under the Crown, or any pension payable during the pleasure of the Crown out of any of the revenues of the Commonwealth: or

(v) Has any direct or indirect pecuniary interest in any agreement with the Public Service of the Commonwealth otherwise than as a member and in common with the other members of an incorporated company consisting of more than twenty-five persons:

shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.

The key provision is 44 (i).

It has been held under this provision (see Sue v Hill) that someone who is a dual national, even though one of the nationalities is Australian, and the other is that of our closest foreign relative, the UK, is ineligible to be a senator. In that case One Nation senator Heather Hill was forced out by the High Court because she was both a UK and Australian citizen.

It did not matter that the relationship between Australia and the UK is as tight as it is.

The three key words with respect to Datyari are “allegiance”, “obedience” and “adherence”. He is obviously not a Chinese citizen, but the taking of money from the Chinese government, combined with his position on Chinese affairs, and the expectations of his donor that gifts will procure policy favours, gives rise to a rebuttable presumption that he is in either “obedience” or “adherence”.

A line like this was run in Nile v Wood in which the plaintiff was unsuccessful. However,analysis by John Kalakerinos, and published by the Department of the Senate, suggests that this would not necessarily mean a case against Dastyari would fail.

Nile v Wood18 (an action arising out of the 1987 election) was another attempt to rely on s 44(i). Elaine Nile brought a wide-ranging petition objecting to the declaration of Robert Wood of the Nuclear Disarmament Party as a senator for NSW, alleging breaches of paragraphs (i), (ii), and (iii) of s 44.19 On the ground relating to s 44(i), the petitioner alleged that Wood’s actions against the naval vessels of a friendly nation indicated allegiance, obedience or adherence to a foreign power.20
Sitting as the Court of Disputed Returns, Brennan, Deane and Toohey JJ held that the petition had set out insufficient facts to establish any acknowledgment of allegiance, obedience or adherence to a foreign power, failing even to identify the relevant foreign power. Speaking obiter, their Honours made the following comment about the first limb:

It would seem that s 44(i) relates only to a person who has formally or informally acknowledged allegiance, obedience or adherence to a foreign power and who has not withdrawn or revoked that acknowledgment.21

From Nile, then, certain requirements are necessary to enliven the first limb of s 44(i). First, a relevant foreign power must be identified. Secondly, there must be a formal or informal acknowledgment of allegiance, obedience, or adherence by the individual in question. Thirdly, the acknowledgment must not have been withdrawn or revoked.

Although the question of the application of the first limb did not arise for consideration before the full bench in Cleary,22 in his dissenting judgment, Deane J nevertheless commented that it ‘involves an element of acceptance or at least acquiescence on the part of the relevant person’.23

Although subsequent cases have not overturned the Nile test, linguistic and conceptual ambiguities make its application uncertain in the contemporary Australian context. What of the many Australians who possess strong links to former homelands or to the homelands of their ancestors? Does s 44(i) apply to Australian citizens who take an active interest in the affairs of foreign nations? In both of these situations the affections—although informal—may be strong, regardless of the possession of foreign citizenship, and may or may not be covered by s 44(i).

The ambiguities surrounding the first limb of s 44(i) have led to differing opinions as to the types of situations and conduct that would fall within it. Lumb and Moens, and Burmester,24 are of the opinion that the acceptance of a foreign award or honour would be insufficient to establish allegiance to a foreign power.25 Lumb and Moens assert that acting as honorary consul for a foreign power would also not be a ground for disqualification under s 44(i).26 Formal acknowledgment of allegiance is probably established by the acceptance of a foreign passport.27 Acts contrary to Australia’s national security interests, for example providing comfort to, raising funds for, or assisting with the military operations of countries or causes unfriendly to Australia, would be likely to constitute an acknowledgment of adherence, and thus contravene s 44(i). Serving in foreign armed forces has been cited as conduct that would constitute formal allegiance.28 However, where military service is imposed compulsorily upon individuals, without any formal or informal acknowledgment, I submit that it would not necessarily constitute an acknowledgment of allegiance, but such a situation has yet to arise in court.29

Further, s 44(i) provides ineffective protection from contemporary forms of foreign influence. For example, it probably does not shield the Parliament from insidious ‘foreign commercial interests’, such as donations to political parties from foreign corporations or individuals.30

The critical part of Kalakerinos’ analysis is “providing comfort to, raising funds for, or assisting with the military operations of countries or causes unfriendly to Australia, would be likely to constitute an acknowledgment of adherence, and thus contravene s 44(i)”.

It is beyond belief that the ALP is so corrupt that partisans like Graham Richardson are already looking towards the re-elevation of Dastyari. What he has done disqualifies him from representing Australia and ought to see him resigning himself from the Senate to avoid any further embarrassment.

This is a matter that the Senate itself should resolve to litigate. If it doesn’t, then a civic-minded citizen should take it on themselves.

At this serious juncture in our national history where south Asia is rearming there should be no tolerance of behaviour which betrays the national interest, certainly not from our elected representatives.

Originally posted at Ambit Gambit.

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29 Responses to Cross Post: Graham Young Is Sam Dastyari eligible to be a senator?

  1. incoherent rambler

    It is beyond belief that the ALP is so corrupt that partisans like Graham Richardson are already looking towards the re-elevation of Dastyari. What he has done disqualifies him from representing Australia and ought to see him resigning himself from the Senate

    Yep.

    I am disturbed that he seemingly cannot be prosecuted.

  2. Stackja

    ALP works to different rules.

  3. zyconoclast

    This has been an ongoing issue for many years.
    Neither of the corrupt and crony LibLabs will do anything to enforce it.
    The more diverse, multi and tolerant we get the more remote any enforcement will occur.

    It’s a bit like a Kenyan becoming POTUS…oops

  4. incoherent rambler

    (ii) Is attainted of treason

    Surely that’s enough to nail him.

  5. Myrddin Seren

    It is beyond belief that the ALP is so corrupt that partisans like Graham Richardson are already looking towards the re-elevation of Dastyari. What he has done disqualifies him from representing Australia and ought to see him resigning himself from the Senate to avoid any further embarrassment.

    Errmmm – Graham.

    After everything we have seen since at least 2007, you are shocked at the naked corruption. Really ?

  6. Phill

    Under Section 249B of the NSW Crimes Act there is every chance that Sam Dastyari is ineligible to be out of jail. Why is this matter being treated as a donations scandal or some technical eligibility issue, when it may well be simply bribery?

    Section 249B says…
    (1) If any agent corruptly receives or solicits (or corruptly agrees to receive or solicit) from another person for the agent or for anyone else any benefit:
    (a) as an inducement or reward for or otherwise on account of:
    (i) doing or not doing something, or having done or not having done something, or
    (ii) showing or not showing, or having shown or not having shown, favour or disfavour to any person,
    in relation to the affairs or business of the agent’s principal, or
    (b) the receipt or any expectation of which would in any way tend to influence the agent to show, or not to show, favour or disfavour to any person in relation to the affairs or business of the agent’s principal, the agent is liable to imprisonment for 7 years.

  7. LOOK at Section 45 too please.

    Section 45 – Vacancy on happening of disqualification

    If a senator or member of the House of Representatives-

    (i.) Becomes subject to any of the disabilities mentioned in the last preceding section: or

    (ii.) Takes the benefit, whether by assignment, composition, or otherwise, of any law relating to bankrupt or insolvent debtors: or

    (iii.) Directly or indirectly takes or agrees to take any fee or honorarium for services rendered to the Commonwealth, or for services rendered in the Parliament to any person or State:

    his place shall thereupon become vacant.

    Section 46 – Penalty for sitting when disqualified

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

  8. Cannibal

    Shorten says Sammy has a bright future. Sammy must have something pretty incriminating on the rest of the scum.

  9. incoherent rambler

    for every day on which he so sits, be liable to pay the sum of one hundred pounds to any person who sues for it in any court of competent jurisdiction.

    one hundred pounds x 22 million citizens x (6 states + 1 commonwealth) x 1 day = lots

    It would be a smart move to resign now.

  10. Hydra

    Should we start a High Court case GoFundMe?

  11. Lysander

    Are you sure the NSW Crime Act is applicable in ACT?

  12. Lysander

    Yeah yeah ok ok I got it; dumb question (should read entire post before posting!)

    Write, 1000 times!

  13. Old School Conservative

    We are shouting to an empty sky on this issue. Labor gets Chinese money. Bob Carr gets Chinese money. Liberals get donations from Chinese companies. Bernadi has (I think) already gone to the UN so no-one will prosecute it.
    Dastardly’s temporary absence from the front bench has been a nod, nod, wink, wink agreement between our duopoly parties to flex their market share muscle and appear to be doing something.

  14. Zyconoclast

    for every day on which he so sits, be liable to pay the sum of one hundred pounds to any person who sues for it in any court of competent jurisdiction.

    one hundred pounds x 22 million citizens x (6 states + 1 commonwealth) x 1 day = lots

    It would be a smart move to resign now.

    Nothing to worry about. Please send the invoice directly to he Yuhu group.
    This will save time and give Dastarly deniability.

  15. A Lurker

    I am reminded of the saying: “He who pays the piper, calls the tune.”

    Why is it that I get the impression that there is an entire orchestra in Parliament House playing Chinese music…

  16. Phill

    Lysander,

    Are you sure the NSW Crime Act is applicable in ACT?

    Beats me, but he is a senator from NSW.

  17. Muddy

    Are there two Wongs in Parliament now?

  18. Frank Golding

    Take a cold shower everyone! The longer this runs the worse it looks for the Government parties which have been accepting donations (bribes) for many years. Eventually a disaffected insider will blow the whistle. It’s about time the whole donation/bribery caper was outlawed for all political parties.

  19. Roger

    At this serious juncture in our national history where south Asia is rearming there should be no tolerance of behaviour which betrays the national interest, certainly not from our elected representatives.

    An academic is presently on The Drum stating that six Australian organisations, including Fairfax, The Guardian and Bob Carr’s university institute, have entered commercial arrangements with the PRC Propaganda unit, essentially boiling down to “cash for favourable comment” in the Australian media.

    He’s reluctant to call this the exercise of “soft power” since it has the potential to subvert our democratic system.

    Perhaps I’m naive, but I’m astounded.

  20. eb

    Wouldn’t expect anyone to seriously go Mr Bean over this. Eric Abetz was still a German citizen for a while and Labor did nothing.

    There’s a serious look the other way code among political scumbags, unless they’re seriously on the nose like Thompson, they all believe they’re entitled to a leniency for “serving us”.

  21. Fat Tony

    Muddy
    #2142473, posted on September 9, 2016 at 5:24 pm

    Are there two Wongs in Parliament now?

    There may well be, Muddy, but remember, 2 Wongs don’t make a White. (Old Labor saying)

  22. alexnoaholdmate

    What nonsense.

    The little worm should have resigned from the Senate, or been disendorsed by the Labor Party. Perhaps he can be charged with corruption – but treason, or a dual allegiance?

    To claim he ‘owes allegiance’ to the nation of China is ridiculous – taking a bribe from someone who happens to be Chinese is hardly betraying your nation to a foreign power.

    You sound like the worst stereotype of a ‘crazy right winger’ conspiracy nut.

  23. vlad

    It is beyond belief that the ALP is so corrupt that partisans like Graham Richardson are already looking towards the re-elevation of Dastyari.

    Not to me it isn’t. The only crime for ALPers is disloyalty to the ALP.

  24. Tel

    (iii.) Directly or indirectly takes or agrees to take any fee or honorarium for services rendered to the Commonwealth, or for services rendered in the Parliament to any person or State:

    If they were bothered enforcing that, it would rule out all campaign donations. After all, there’s an obvious indirect benefit in getting re-elected and clearly the donor must be donating for a reason so there’s a service implied there too. For example, when the unions make campaign donations they get members into the Senate who favour labour laws, protection for unionists, etc.

  25. destroyer D69

    Add to the list of those ineligible to be in Parliament anyone who swears their oath of allegiance using the quoran ……….

  26. Rabz

    six Australian organisations, including Fairfax, The Guardian and Bob Carr’s university institute, have entered commercial arrangements with the PRC Propaganda unit, essentially boiling down to “cash for favourable comment” in the Australian media.

    Absolutely infuriating news.

    So we can now forget about Fauxfacts collapsing under the weight of its infinite absurdities as we’ll be witnessing instead its transition into a propaganda organ of the PRC – there’s even a ready made mass audience of loyal little expat drones infesting this country who’ll be obligated to lap it up.

    I will tolerate Chinamen stealing our jerbs, homes and baby formula, but I will not tolerate them preventing Fauxfacts’ imminently imminent collapse.

    This means war. 😡

  27. Rabz

    By other means, of course.

  28. 1234

    I only have one thing to say – Arthur $inodinos. Where is his resignation? Other than that, Graham Young can keep on dreaming.

  29. faceache

    I suspect Derryn is still a Kiwi

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