The rules are for other people

President of the Rule of Law Institute of Australia, Robin Speed:

While the High Court is considering this matter, no politician should be required to resign or stand down. Australia is governed by the rule of law not by the rule of allegations.

I suspect he is making a not guilty until proven guilty argument; nobody should describe politicians as being “innocent”. Ordinarily that would be the correct conclusion.

But … Some of the politicians who have resigned from the Parliament were clearly and unambiguously in breach of the Constitution. Some who have not resigned are also in clear and unambiguous breach of the Constitution. Okay – they’re hoping that the High Court “clarifies” the law – what we mere citizen-voters may consider to be a change to the Constitution in a manner other than that described in s128 of the Constitution.

What I found most challenging is this statement:

Here the allegation is of a breach of a provision, with no suggestion that it might possibly affect the carrying out of the person’s duties as a Parliamentarian or member of cabinet.

But that is precisely what section 44 suggests (emphasis added):

Any person who is under any acknowledgment 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 a citizen of a foreign power … shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.

So the PM and the speaker of the House and president of the Senate all know that there are people in the House and Senate who may very well be sitting as MPs and Senators in breach of the Constitution and do nothing until the High Court rules on the matter? Sure some of them are in a situation where the facts are in dispute and they should not be denied their day in court, but in any other profession all these people would be on “gardening leave” until that day.  Why hasn’t the Governor-General asked for an explanation?

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47 Responses to The rules are for other people

  1. Leo G

    But … Some of the politicians who have resigned from the Parliament were clearly and unambiguously in breach of the Constitution.

    The Constitution is clear about one thing- that the final decision about the qualification of a parliamentarian is a matter for “the House in which the question arises”.

    The etiquette for a member who has reason to believe they may not be qualified should be first to inform the Parliament, then to await its determination.
    Those who resign without such a determination may give the impression that they have something to hide.

  2. Another old bloke

    Absolutely correct, Steve.

    I’ve also been wondering about the validity of any votes by Members and Senators who were not entitled to be elected.

  3. Ray

    Leo, whilst it is true to say that the Constitution does give the final decision about qualifications to the house in which the question arises, no such discretion is afforded under Section 44 which defines four specific areas of disqualification which are not open to the Parliament to adjudicate upon. Thus the Parliament can require members to be Australian citizens which is not a prerequisite under the constitution, it cannot over ride Sectional 44(i) forbidding dual nationality.
    This is an issue which must be determined by the High Court.

  4. billie

    The Constitution is not flexible and cannot accommodate those who are in breach of it.

    There are consequences, and they ignored it (nudge nudge wink wink).

    If they want to change the constitution, go to the people!

    Which leads also to Senator Wong, since we’re relying on other countries now to decide whether or not a participant is of their nation or otherwise, doesn’t the Chinese government claim all people of Chinese descent as being of their nation?

    That’s you mate, whether you like it or not and the same for old Barnaby Joyce is the same for you. As Barnaby is a Kiwi you are Chinese.

  5. Pedro the Ignorant

    The GG is a nice bloke, war hero, good at his ceremonial job and loved by most Australians.

    But, according to some of his Duntroon classmates, he is not too bright.

  6. A good point about decisions having been decided by those ineligible to participate. I wonder what would be different if these were taken into account, given that it could be done retrospectively?

  7. Another old bloke

    Leo G,

    It seems to me that the provision you quote, s47, does not apply.

    S44 stipulates the basis for eligibility to become a member or senator and that people failing any of those tests “shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.”

    If Mr Joyce, for example, has failed any of the s44 tests then he was ineligible to have been elected originally to the Senate and later to the House. In that case, he has never been a senator nor a member. That is not something that can be remedied by a vote on party lines in the House.

    The High Court is the correct (and only) body to interpret s44. S47 is irrelevant to this matter.

  8. Roger

    It seems the president of the Rule of Law Institute of Australia doesn’t have a very good grasp of what the rule of law means.

  9. RobK

    Some of out Pollies are constitutional lawyers. None of them are as good as they like to think they are. Sad, but costly.

  10. val majkus

    The court also said:

    “What is more, section 44(i) finds its place in a Constitution which was enacted at a time, like the present, when a high proportion of Australians, though born overseas, had adopted this country as their home.

    “In that setting, it could scarcely have been intended to disqualify an Australian citizen for election to Parliament on account of his or her continuing to possess a foreign nationality, notwithstanding that he or she had taken reasonable steps to renounce that nationality.”

    From this interpretation, the media coverage of whether a person has or has not renounced the nationality has sprung. And questions have been raised about the person who could not have reasonably believed he or she was a foreign citizen.

    Having foreseen the problems it was equally open to treat the foreign law as not decisive but simply a factor to be taken into account, as with the test of “real and effective nationality”; particularly as the court was interpreting the Australian Constitution and the important eligibility of persons to sit in the Australian Parliament.

    my reading is that the test of ‘real and effective nationality’ is a matter of domestic law not international law

  11. test pattern

    Everyone’s aware that Australian sportsmen with a Kiwi parent can qualify to represent NZ. eg Luke Ronchi. If Joyce says he didn’t know he’s a liar.

  12. BoyfromTottenham

    Does anyone know what the words ‘Until the Parliament otherwise provides’ means (e.g. sections 46, 47, 48 etc.? Is this an exemption from section 128 ‘Alteration of the Constitution’, or something different again?

  13. Ray

    We should not jump to any conclusions with regard to the qualification of Senators and MHRs at this stage.

    The High Court has found that dual citizenship is sufficient to disqualify a member under Section 44(i) but has not defined the circumstances under which such dual nationality might be triggered.

    In Cleary v Sykes, the court found that candidates who were born overseas, obtained Australian citizenship by naturalisation and failed to take any steps to renounce their foreign nationality were ineligible to stand for Parliament. However, the court was equally clear that they were not giving an unqualified effect to the rule of international law. Indeed, three judges found that the circumstances of the particular case were important, particularly “the situation of the individual, the requirements of the foreign law and the extent of the connexion between the individual and the foreign State of which he or she is alleged to be a subject or citizen.” The question which needs to be ascertained is whether a person born in Australia has a sufficiently remote connexion with the foreign state to make the rule of international law inconsequential in the specific case.

    In a minority opinion, Dean J stated that “an Australian-born citizen is not disqualified by reason of the second limb of s. 44(i) unless he or she has established, asserted, accepted, or acquiesced in, the relevant relationship with the foreign power.” If this view carries weight with the full bench then Joyce would be found to be eligible to sit in the Parliament.

    On the other hand, in another minority opinion, Brennan J noted that this issue depends “upon such matters as the requirements of the foreign law for the renunciation of the foreign nationality, the person’s knowledge of his foreign nationality and the circumstances in which the foreign nationality was accorded to that person.” This would suggest that if a foreign state makes it easy for an individual to renounce their citizenship and the person was aware of their foreign citizenship, then failure to renounce is sufficient grounds to declare a member ineligible to stand. The question here is whether ignorance of the law is sufficient to remove the obligation of renunciation, creating any amount of moral hazard and raising the question of just how ignorant we really want our Parliamentarians to be.

    What we need to take note of is the fact that foreign nationality laws do carry weight in Australia given common law treatment and the fact that we have signed the Hague convention. However, this is only one aspect which the High Court will consider in determining the eligibility of members. In fact being born in Australia is more than likely to provide sufficient distance between an individual and the foreign state to over ride the rule of international law.

    At this stage we do not really know how the High Court will rule on these issues and so it would be somewhat premature to judge whether any of our existing Parliamentarians are ineligible to sit.

  14. .

    Parliament can require members to be Australian citizens which is not a prerequisite under the constitution, it cannot over ride Sectional 44(i) forbidding dual nationality.
    This is an issue which must be determined by the High Court.

    All gibberish and wrong.

  15. Ray

    Dot, which part of this is gibberish? Section 34 of the Constitution reads as follows

    Until the Parliament otherwise provides, the qualifications of a member of the House of Representatives shall be as follows:

    he must be of the full age of twenty-one years, and must be an elector entitled to vote at the election of members of the House of Representatives, or a person qualified to become such elector, and must have been for three years at the least a resident within the limits of the Commonwealth as existing at the time when he is chosen;
    he must be a subject of the Queen, either natural-born or for at least five years naturalized under a law of the United Kingdom, or of a Colony which has become or becomes a State, or of the Commonwealth, or of a State.

    Section 34 does not require a member to be an Australian citizen, only a subject of the Queen. The requirement to be an Australian citizen is contained within Clause 163 of the Commonwealth Electoral Act 1918 because Section 34 contains the condition “Until the Parliament otherwise provides”.

    What is important here is that Section 44 does not contain the condition “Until the Parliament otherwise provides”, so this cannot be determined by the Parliament. It is a matter for the Court.

  16. Ben Gray

    I think the problem comes from how someone is defined as a dual citizen – if they were born overseas and acquire it on birth, it’s fairly clear that you are a dual citizen, even if you moved to Australia when still a baby. Same if you apply for citizenship of another country – you should have to renounce it. I agree with the idea that you should only have one citizenship in our parliament (and more broadly, I’d completely abolish dual citizenship for everyone).

    But if someone else applies on your behalf for citizenship, or if a foreign government claims you as one of theirs because of your race, religion or ancestry, I think most people would agree it’s a bit murky.

    you’d risk ruling ineligible anyone who is part: Chinese (Communist China claims all people of Chinese decent), Jew’s (Israel offers the right of return and citizenship to all Jews), Catholics (allegience to the Pope, who is also the leader of a country), Muslims (ISIS), Aboriginals (they all have their own nations now), etc etc etc.

    At this stage, we need it to go to the High Court, to confirm some minimum standard, and then following it up with legislation, or even a referendum if needed.

  17. Tim Neilson

    Does anyone know what the words ‘Until the Parliament otherwise provides’ means (e.g. sections 46, 47, 48 etc.? Is this an exemption from section 128 ‘Alteration of the Constitution’, or something different again?

    Pretty much. “Until Parliament otherwise provides” means “until Parliament passes legislation establishing different rules, after which those different rules then supersede this section,”.

    It’s not technically an amendment to the Constitution but it has exactly the same effect. It’s just that the Constitution itself permits it to be done.

  18. Haidee

    Even if you don’t jump to conclusions re qualifications, most of these in the spotlight have been covering up for some time.

    If the GG ‘asked for an explanation’ – that would be something.
    He does a lot of beaming and chuckling.

  19. Empire GTHO Phase III

    Why hasn’t the Governor-General asked for an explanation?

    The GG acts on the advice of his ministers. If the government can’t sort this shit out and parliament becomes unworkable, only then would he consider seeking external advice and acting unilaterally.

    Post Kerr, I imagine any GG will tread very carefully.

  20. Harald

    they’re hoping that the High Court “clarifies” the law – what we mere citizen-voters may consider to be a change to the Constitution in a manner other than that described in s128 of the Constitution.

    This is the abolishing of the Debt Limit all over again:
    Libs hard at work, trashing the institutions and traditions at the very core of our democracy for their narrow short term gain.

  21. alan moran

    While people like Sinc and me who were born overseas are clearly traitors unfit to represent the people, we do need to reconcile the rules with the practicalities that over half of the population was either born overseas or has a parent born overseas. Let us not lose sight of the fact that the rules were there to prevent representatives subverting the nation (and on my reckoning there are just as many home grown traitors as imports).

    I cannot understand what is wrong with a rule that says if you are born here you are Australian no iffs and buts; if both your parents are Australian but you are born overseas, unless having been registered as a citizen of your birth country you are Australian; and if you take the oath of allegiance to the Queen of Australia in doing so you pledge that this overrides any other fealties

  22. Empire GTHO Phase III

    I cannot understand what is wrong with a rule that says if you are born here you are Australian no iffs and buts; if both your parents are Australian but you are born overseas, unless having been registered as a citizen of your birth country you are Australian; and if you take the oath of allegiance to the Queen of Australia in doing so you pledge that this overrides any other fealties

    A typically sensible and compelling argument, Alan.

    Let’s put it to a referendum.

    In the iterim, let’s flame His Excellency and demand the Parliament be dissolved on account of it being stacked with mendacious vermin who made false declarations.

    The incompetence and disdain for the reputation and lawful operation of the institution for which they sought election, must not go unpunished.

  23. Pickles

    Hi Alan! (nerk) and yes, but the prohibition should be extended to voters as well. Furrin devils, spies, fifth columnists and agents provocateur ought be banned from ruling over us AND deciding who rules over us. Put that in a referendum and see how it goes.

  24. stackja

    The world has many dual Australians.

  25. .

    Ray
    #2471651, posted on August 17, 2017 at 4:24 pm
    Dot, which part of this is gibberish? Section 34 of the Constitution reads as follows

    Until the Parliament otherwise provides, the qualifications of a member of the House of Representatives shall be as follows:

    he must be of the full age of twenty-one years, and must be an elector entitled to vote at the election of members of the House of Representatives, or a person qualified to become such elector, and must have been for three years at the least a resident within the limits of the Commonwealth as existing at the time when he is chosen;
    he must be a subject of the Queen, either natural-born or for at least five years naturalized under a law of the United Kingdom, or of a Colony which has become or becomes a State, or of the Commonwealth, or of a State.

    Section 34 does not require a member to be an Australian citizen, only a subject of the Queen. The requirement to be an Australian citizen is contained within Clause 163 of the Commonwealth Electoral Act 1918 because Section 34 contains the condition “Until the Parliament otherwise provides”.

    What is important here is that Section 44 does not contain the condition “Until the Parliament otherwise provides”, so this cannot be determined by the Parliament. It is a matter for the Court.

    No Ray, you have never heard of Sue v Hill, section 47 of the Constitution or section 39B (1A) of the Judiciary Act (Cth) regarding findings of fact and not law.

    Complete and utter gibberish.

  26. iamok

    So you want to be a politician? Here are the clear and unambiguous standards, read them and comply.

    So you want to be a company director? Ditto.

    It is not that hard is it folks? Research, understand and comply. This fiasco just confirms again that our pollies are either incompetent or complicit. Or both.

  27. Yohan

    or entitled to the rights or privileges of a subject or a citizen of a foreign power

    If we use the letter of the law, an Australian born citizen is not entitled to the rights or privileges of a subject or a citizen of a foreign power. They only gain those rights or privileges once they apply for citizenship.

    So yes, they are entitlesd to apply for said citizenship, and its only then this passage would apply.

    Would that defence work?

  28. Harald

    Yohan,
    To me it makes a difference whether we are talking about:
    1. applying for: you start from being unentitled to it and subsequently there is a process at the end of which there is a decision so the outcome is not certain upfront.
    2. registering: you walk up to the counter, perhaps prove who you are but other than that you merely have to put your name down and you’re in with no further requirements.

    If all that is required is to register at the NZ consulate and you get an NZ passport, then by that fact alone you are entitled to a “right or privilege” available exclusively to NZ citizens.

  29. DM OF WA

    Frankly, I do not understand why no one has claimed that we are now in a full blown constitutional crisis at this point. There must be serious doubt about the legitimacy of the Turnbull government. How people like Barnaby Joyce and co should continue to sit in parliament given the strong prima facie cases against them and given how strongly the government condemned Green and PHON members who were expected to quit in similar circumstances?

    Shorten should be agitating hard for the Governor General to dismiss the government.

  30. Rob MW

    It should be noted that it is the personal responsibility, and liability, of any person seeking election to the Commonwealth of Australia’s parliament for either house to check, and double check for eligibility. Failure to do so is not the fault of the Constitution. It is the fault of the wannabe politician before election day. The country can not and should not acquiesce to a sweat-shop employment mentality where decision and law makers that profoundly affect the daily lives of private individuals and private enterprise should and must be held to a higher responsibility standard, lawful ignorance of the most fundamental law of this nation is not a standard reserved or enshrined for wannabe politicians. There is no suck fucking thing.

    If the wannabe politicians are too lazy and/or inept to do their own personal homework then they can fuck off, they have no right to be making decisions or laws.

  31. The world has many dual Australians.

    Barnaby and the other dual nationals should settle it the old way: duels. They have to last twelve rounds with Jeff Horn or it’s outski.

  32. Yohan

    To me it makes a difference whether we are talking about:
    1. applying for: you start from being unentitled to it and subsequently there is a process at the end of which there is a decision so the outcome is not certain upfront.
    2. registering: you walk up to the counter, perhaps prove who you are but other than that you merely have to put your name down and you’re in with no further requirements.

    If all that is required is to register at the NZ consulate and you get an NZ passport, then by that fact alone you are entitled to a “right or privilege” available exclusively to NZ citizens.

    I like this logical reasoning. But even in the case of Example 2, is there still some possibility that the registration can be denied for NZ or Scottish citizenship? If so, the defense could claim there is no automatic entitlement until the registration process had been applied for.

  33. Yohan

    For example, do convicted drug dealers or murders still get automatic NZ citizenship upon registration just because a parent was born there?

  34. Harald

    For example, do convicted drug dealers or murders still get automatic NZ citizenship upon registration just because a parent was born there?

    Interesting point. Thank you.

    I would argue that the burden of proof has reversed in that case, in a sense: In principle, you are entitled to a NZ passport, but if you have misbehaved to the point you may have forfeited that privilege and they find cause to renege. I guess that could happen.

    Personally, I would enjoy Barnaby making that case: “Look at what I have done and the mess I have made, surely that should be sufficient cause to revoke my NZ citizenship.”

    He could point at voting in favour of abolishing the debt limit, not repealing 18c in spite of it being a coalition promise, not lowering taxes as he had promised, probably even at voting in favour of a retrospective law or 2.

    He might have a case.

    Not too sure it’d help him get re-elected here, though. 😛

  35. kurt

    I don’t quite understand the hoopla. When the constitution was written Australia was well and truly part of the British Empire. Is anyone really trying to suggest that they had British subjects in mind when they wrote ‘foreign powers’? Why can’t we see this in historical context?

  36. John Michelmore

    I agree with Rob MW, any politician who has not taken the time and effort to understand and comply with our Constitution has no right to be involved in legislation, regulation and law making. What we are seeing here is politicians checking to see if they comply with our Constitution years after the fact. Ignorance is not an excuse for not complying with the Constitution. I will never believe that people like Barnaby Joyce were unaware of the possibility. Rather it is an example of how his attitude and attention to detail is unsatisfactory in relation to his position. Joyce should stand aside until it is resolved and he has revoked his NZ problem.

  37. Nicholas (Unlicensed Joker) Gray

    I have been to NZ three times for holidays. Does that make me an honorary Kiwi?

  38. old bloke

    Why hasn’t the Governor-General asked for an explanation?

    Perhaps he has, who knows?

    Ideally, the Governor General should prorogue Parliament until the High Court rules on the eligibility issue, but does the constitution authorise the Governor General to do so? We know that the “reserve powers” allows the Governor General to sack a government and appoint a care-taker Prime Minister, but what is needed now is for Parliament to be prorogued and enter care-taker mode only until the High Court rules.

    If the Governor General doesn’t have the authority to prorogue Parliament, he should, at the very least, privately (or publicly if needs be), call upon the Prime Minister to prorogue Parliament.

    The Special Minister of State (Mathias Cormann) should also order the AEC to audit all Members and Senators to determine their eligibility to sit in Parliament before it goes into recess.

  39. Cynic of Ayr

    Well, the way I see some of them, Joyce for example, is that they are entitled to apply to become foreign citizens.
    They are not foreign citizens now, as AFAIK, not applied to be one.
    Now, how far back does this entitlement go? If it is three, four, five, ten(!) generations, then a hell of a lot of us could apply, and be granted, based purely on heritage.
    It’s all bullshit for most of them.

  40. Nicholas (Unlicensed Joker) Gray

    Now there’s a claim that Xenothon may have dual citizenship! We should call him Xenophony

  41. .

    Ideally, the Governor General should prorogue Parliament until the High Court rules on the eligibility issue, but does the constitution authorise the Governor General to do so?

    The governor general is directly authorised to determine the sitting times. See section 5 of the Commonwealth Constitution.

  42. candy

    The Special Minister of State (Mathias Cormann) should also order the AEC to audit all Members and Senators to determine their eligibility to sit in Parliament before it goes into recess.

    Well, if it was Tony ABbott’s government the Fairfax and ABC crowds would pound him on this. They would be ruthless and call in the Governor-General. It would be merciless.

    But since it’s M. Turnbull, who is a dear friend of Mark Kenny/Hartcher, Leigh Sales etc, nothing is expected of the LNP, MT being one of the elites.

    So I think Barnaby and Fiona Nash are safe. Malcolm Turnbull won’t let anything happen to them, as Fairfax and ABC will never criticise Mr Turnbull, no matter what.

  43. .

    Well, if it was Tony ABbott’s government the Fairfax and ABC crowds would pound him on this. They would be ruthless and call in the Governor-General. It would be merciless.

    Please Grigory, you purport to be a lawyer. You know the GG doesn’t act on the advice of anyone else but the PM and Cabinet and perhaps the justices of the high court if they seek it.

  44. Another old bloke

    Well, the way I see some of them, Joyce for example, is that they are entitled to apply to become foreign citizens.

    Barnaby Joyce’s father is a Kiwi. Barnaby Joyce is automatically a Kiwi by descent. This has nothing to do with “being entitled” or “applying” or “becoming”.

  45. Haidee

    Nick Xenophon (Xenophou)
    Him too? please let it be true

  46. R. W.

    All very well, but is the constitution legal? It is in its self an act of the British parlament therefor a foreign imposition. It has never been ratified by the Australian people via a referendum.
    Ponder the implications of that one.

  47. Cynic of Ayr

    Hmmmm. It seems I may have been in error my statement, “Well, the way I see some of them, Joyce for example, is that they are entitled to apply to become foreign citizens.”
    The Constitution says (from the article) “Any person who is under any acknowledgment 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 a citizen of a foreign power … shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.”
    Aha! So, any person who is entitled is incapable… “Entitled.”
    This seems pretty straight forward to me. But, the High Court may choose – as it has done in the past – to re-write the meaning of the Constitution to what the High Court guesses the writers of the Constitution were thinking.
    Then, another question. If, say, Joyce renounces his foreign citizenship, is he still entitled to be a foreign citizen? Like, is he still entitled to un-renounce his citizenship? If so, he is still incapable of sitting in Parliament, as he is still entitled to be a foreign citizen.
    Fascinating!
    A pity so much energy is not put into alleviating some of the troubles of the country.

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