Section 44 (iv): where do ministerial advisers fit in?

Now we are all agreed that Section 44 of the Constitution is creating the silly season of all silly seasons; but the Constitution still stands.

According to Section 44(iv):

Any person who 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…

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

Now the law is clear that federal and state public servants are deemed to be persons who hold office of profit under the Crown and are ineligible unless they resign their positions prior to nomination. (Phil Cleary was a state school teacher and was knocked out.)

It is not so clear in respect of local government employees and councillors – hence the hold up with the Jacqui Lambie nominee who is also the major of Devenport.

Where university staff fit in is also unclear.  Arguably they are employed the universities which are established by state legislation and there is a variety of funding sources that cover the salaries of staff.  But who knows really?  There have been a few former academics in parliament over the years – Neale Blewett, for instance.

But where do ministerial advisers fit in?  They are paid by the Commonwealth.  They are surely persons who hold office of profit under the Crown.

Talk about a cat among the pigeons?  There are slews of current parliamentarians who were lobbed into their seats from being ministerial advisers.  Should they be deemed to be ineligible under section 44?

And don’t just think it would be Labor’s problem; it is now the preferred pathway for the Coalition too.  Canavan and O’Dwyer spring to mind as former ministerial advisers.

Just a thought.

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60 Responses to Section 44 (iv): where do ministerial advisers fit in?

  1. H B Bear

    If you knock out former political advisors the place would be empty. It would also be the single greatest thing you could do to improve the place. Death to so-called professional politicians.

  2. Tel

    Talk about a cat among the pigeons? There are slews of current parliamentarians who were lobbed into their seats from being ministerial advisers. Should they be deemed to be ineligible under section 44?

    The wording of the Constitution is all present tense, not past tense. Thus the implication is that it would be illegal to attempt to be both an adviser and a parliamentarian AT THE SAME TIME. However, if you stop doing one job and start doing a different job that’s OK.

    As for the pensions though I would have thought that if public service pensions contain any Commonwealth month that should exclude such people from being parliamentarians. All the more reason to fully privatize the entire Super system into funds that are totally and completely isolated from the Commonwealth. Such separation of power is easy to talk about, but you can be sure they will be finding sneaky ways around whatever you do… but as an ideal it is sound.

  3. Peter Doobes

    How do you like that light bulb, Malcolm?

  4. peter cavanagh

    Aren the AEC and AFP locked in the dungeons of of old parliament house? Surely it is their duty to prosecute all those who have made false declarations referral to the high court is not necessary the local courts will do the job and of course if found guilty they will automatically booted from parliament. I have always been concerned by the number of lawyers in parliament and would like to see them investigated as to whether they had interests in law firms when they nominated that did legal aid or government work. Remember the whole purpose of section 44 is to keep crooks out of parliament including bankrupts and also importantly those who are insolvent. I think section 44 should be changed by referandem but only to add a clause that boots the perk merchants out ,no further opportunities to pay back the money when caught

  5. Strayan Drongo

    Hey Tel, I think you will find that the Fiona Nash decision shows that its not just at present but at all in your history

  6. peter cavanagh

    Tel read the constitution you must be a cleanskin before nominating the framers of the constitution knew crooks are attracted to parliament like blowflies to a dead roo.

  7. peter cavanagh

    PS there is already a case before the courts Alley v Gillespie that should clear up some of the mist if the court gets its finger out.

  8. Team_v

    Does this affect Andrew Hastie.

    Was he a member of the military before (?) He nominated for the Libs.

    Also what about Jim Molan?

  9. Leo G

    Surely, it is time for the magic words “Until the Parliament otherwise provides” to appear as the opening clause of s44.

  10. Judith Sloan

    But the Gillespie case involves his ownership of a shopping centre where one of the tenants is Australia Post. It won’t clear up the case of the ministerial advisers.

  11. Peter Phelps MLC

    We already know – the Jeannie Ferris case

  12. Tel

    The words are right up at the top of the page and strangely enough the framers of the constitution never chose to use the word “cleanskin” whatever that means, instead they used the phrase “holds any office of profit” which is very clear and well defined.

  13. struth

    People are starting to read the constitution.

    Can’t be a bad thing.

  14. entropy

    H B Bear
    #2555972, posted on November 17, 2017 at 7:59 am
    If you knock out former political advisors the place would be empty. It would also be the single greatest thing you could do to improve the place. Death to so-called professional politicians.

    You are to merciful, Bear.

  15. Eyrie

    In Qld the local government is just a branch of the State government so yes, councilors, mayors and council employees hold an office of profit under the Crown.

  16. entropy

    What if you are on a pension of any kind? Eg miltary, ex-pollie etc. child care subsidies?

  17. Atoms for Peace

    Should buy into pop corn futures. Can’t wait to see someone challenge laws that were promulgated whilst some ineligible members were in parliament

  18. entropy

    Eyrie
    #2556030, posted on November 17, 2017 at 8:50 am
    In Qld the local government is just a branch of the State government so yes, councilors, mayors and council employees hold an office of profit under the Crown.

    And must resign to run for state parliament. A strategy of Beattie to kill off national party training grounds. It’s a Qld thing that would not work as well in other states, and in qld didn’t hurt ALP much who at the time were mostly trained in union and ministerial offices.
    I think in Qld local govt can run n federal elections.

  19. Judith Sloan

    Jeannie Ferris case never went to High Court. She actually resigned and was reappointed.

  20. Judith Sloan

    Jackie Kelly case suggests those who are ministerial advisers at time of nomination could be deemed ineligible.

  21. .

    Section 44 is mostly brilliant. If we ended advisers and staffers from running for Parliament, it may be as good as ending compulsory voting and AEC funding of political parties. Not quite sortition but…

    Barnaby and Jacquie Lambie being ineligible was a joke. The Bob Day case was a joke; it was legal chicanery. What Turnbull said was irksome…” the constitution is not meant to be interpreted literally”.

    Yes, it is, otherwise, we wouldn’t have one and we’d just let Parliament change the basic laws as they like; nor would plain language, literal interpretation be the first approach the various Interpretation Acts insist upon.

    There could be a vast majority of Australians ineligible to enter Parliament by birthright or employment.

    This isn’t necessarily a bad thing. It could be the catalyst to privatise universities for example.

  22. PoliticoNT

    Arguably they are employed the universities which are established by state legislation

    Judith – didn’t the Tertiary Education Act (or whatever it’s called) move responsibility for universities to the Commonwealth? See TEQSA as well – the supposed oversight agency.

  23. Infidel Tiger

    Section 44 remains the greatest piece of law ever drafted in australia.

  24. Judith Sloan

    Yes I think academics would need to resign before nomination. Cleary showed leave without pay is not good enough.

  25. v_maet

    Will be interesting to see how this impact military personel.

    Jim Molan and Andrew Hastie could be impacted.

  26. Just Interested

    1. Political staffers are captured by the office of profit provisions – they’ve known that for ages and so they all know to resign yonks before any election, and therefore call for nomination, is held. That’s why none have fallen foul of s.44.

    2. So do most (although plainly, not all) public servants. They know they can safely resign from the public service, with a clear right of reinstatement:

    http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/psa1999152/s32.html?context=1;query=election;mask_path=au/legis/cth/consol_act/psa1999152

    I just wonder whether this clayton’s resignation provision is now kosher?

    That’s the more interesting question.

    (And no, most (but not all) staffers aren’t covered by this provision: they are typically employed under an act with the acronym the MOPS Act.

  27. Elizabeth (Lizzie) Beare

    Yes I think academics would need to resign before nomination

    Yes, I know someone who did this; he didn’t win and then rescinded his resignation letter, which had been held ‘pending’, I guess because he was standing for the left. I suspect righties wouldn’t be given the same favour. I think he was also a British citizen although a naturalized Australian.

    That was all in the days of yore. But plenty of it around still, so it seems.

  28. Just Interested

    Arguably they are employed the universities which are established by state legislation

    Judith – didn’t the Tertiary Education Act (or whatever it’s called) move responsibility for universities to the Commonwealth? See TEQSA as well – the supposed oversight agency.

    The effect of the Cleary case (who was a Victorian High School system) suggests the ‘Crown’, as used in s.44, means public sector employees at all levels, State and Federal.

  29. struth

    Will be interesting to see how this impact military personel.

    They are exempted.
    However, that’s only military of the queen.
    Which queen is that?
    The queen of the country you can’t be a dual citizen from as it’s considered foreign?

    The big problem is that of who is our queen (or king) as of the Australia act, and no referendum being held.

    They screwed up big time.

  30. Leo G

    As for the pensions though I would have thought that if public service pensions contain any Commonwealth (money) that should exclude such people from being parliamentarians.

    The Commonwealth money would have to be “payable during the pleasure of the Crown” for ss(iv) to apply. The qualifier “during the pleasure” implies that the income may be withdrawn at any time, solely on the discretion of the Crown.
    The High Court seems, though, to have its own divine right to interpret arbitrarily.

  31. .

    Oh Leo don’t start me. See Cole v Whitfield. (Emphasis is mine).

    (NSW) Bar News 9 1989 (Summer)

    Sir Garfield Barwick:

    “Yes, I have read it. They’ve got a magnificent remark in that the Constitution might provide the text but not the test, so they proceed to say that what they were worried about at Federation was protection for free trade and what they were intending is that interstate trade should be relatively free ….but they said absolutely free so you don’t take any notice of the text. You find the test is whether the law is passed from a protectionist point of view. It’s really laughable. I’d have great fun appealing from that with the Privy Council. Dear me, it’s terrible tosh, you know.

    That is a remarkable sentence when you analyse it; the Constiituion might provide the text but not the test. Very sad(!)

  32. Rob MW

    Hmmm……. the extension could be breathtaking, for example; what about those that sit on ‘Prescribed Bodies’ collecting remuneration by virtue of the ‘Prescription’, or in another area, the Crony Capitalist rent-seeker and/or Government Contractor ?

  33. Judith

    This is pretty limitless when you think about it. Doctors – out, because of Medicare. Dentists – out, because of government schemes. Pharmacists – definitely out because of PBS. Many accountants and lawyers will have done work for federal, state or local governments, directly or indirectly.

    When the Constitution was established, government was a tiny fraction of the economy; it now very substantial, close to 40 per cent. It’s hardly surprising that many potential parliamentarians could be caught by s44 (iv)

  34. Judith

    I don’t see how the MOPS act changes anything; they are still being paid for by the Crown.

  35. Dr Faustus

    But where do ministerial advisers fit in? They are paid by the Commonwealth.

    Although the issue is muddled if they are employed by a personal company or appointed as ‘consultants’ under a contract for services, they are also expressly employed by the Commonwealth:

    Electorate employees are generally employed under Part IV of the Members of Parliament (Staff) Act 1984 (MOP(S) Act), and are responsible to the employing Senator or Member.2 Personal employees and, in some cases, electorate employees, are employed under Part III of the MOP(S) Act.3

    MOP(S) Act employees are covered by the Commonwealth Members of Parliament Staff Enterprise Agreement 2012–2015 (the Enterprise Agreement) which sets out the employees’ terms and conditions of employment.

    The Members of Parliament (Staff) Act 1984 is very clear that Ministerial personal employees are employees of the Commonwealth in all regards – although their employment can be terminated immediately (with compensation) for various political reasons.

    Being what they are, some ministerial advisors will doubtless have interposed companies/contracts for service to disguise their status for the purpose of a low-risk tilt at parliament. However, just as the courts look through these structures for personal tax purposes, there is no shortage of precedent to winnow the bastards.

  36. StrayanDrongo

    Also as more of Government services are privatized, a good thing because competition will improve these services – will make the pool of possible MPs smaller and smaller.

  37. sabena

    Ministerial advisors hold an office of profit under the Crown.
    Before we get too excited about this,I would expect that candidates who were ministerial advisors resigned their position before nomination.

  38. .

    This is pretty limitless when you think about it. Doctors – out, because of Medicare. Dentists – out, because of government schemes. Pharmacists – definitely out because of PBS. Many accountants and lawyers will have done work for federal, state or local governments, directly or indirectly.

    Brilliant. Utterly brilliant.

  39. .

    StrayanDrongo
    #2556128, posted on November 17, 2017 at 10:16 am
    Also as more of Government services are privatized, a good thing because competition will improve these services – will make the pool of possible MPs smaller and smaller.

    What? If government got smaller, more people would be eligible as they’d have less chance of falling foul of the rules…right?

  40. StrayanDrongo

    .
    #2556137, posted on November 17, 2017 at 10:21 am
    StrayanDrongo
    #2556128, posted on November 17, 2017 at 10:16 am
    Also as more of Government services are privatized, a good thing because competition will improve these services – will make the pool of possible MPs smaller and smaller.

    What? If government got smaller, more people would be eligible as they’d have less chance of falling foul of the rules…right?

    I guess it depends how we minimize government, if we just outsource the current burden probably not, but if we cut Government down to a more appropriate sizer then I think you are right…. lets hope the latter.

  41. Tintarella di Luna

    The crucial phrase is at the time of nomination. So if you were anyone paid from the purse of the Crown then you are ineligible. Doesn’t matter WHEN you resigned as long as you resigned BEFORE you nominated.

  42. struth

    Shall be incapable of BEING CHOSEN ……………………………..could be relevant here as well?

  43. Tim Neilson

    This is pretty limitless when you think about it. Doctors – out, because of Medicare. Dentists – out, because of government schemes. Pharmacists – definitely out because of PBS. Many accountants and lawyers will have done work for federal, state or local governments, directly or indirectly.

    I don’t think that getting paid by the government for work is a disqualification. The relevant phrase is “office of profit”, and the concept of an “office” is narrower than just being hired to do something.

    But if you’re right and I’m wrong, then eligible candidates would be largely confined to drug dealers and car rebirthers. (Which would probably raise the average ethics of the place.)

  44. Tintarella di Luna

    I heard a podcast last night of Professor David Flint speaking about the complete and utter balls-up by the terminal termite and the numbnuts sitting in our Parliament. I can’t find the podcast I think it was yesterday and he made the point that there was no need to make the High Court the court of disputed returns it could have been the Balmain Magistrate’s Court and there was a time limit in which to do so and then after consultation the dispute MAY be referred – maybe this whole thing is a disaster because the smartest man on the planet didn’t know the constitution well enough?

  45. Tintarella di Luna

    Before we get too excited about this,I would expect that candidates who were ministerial advisors resigned their position before nomination

    Well that would be pretty easy to check wouldn’t it?

  46. Dr Faustus

    Before we get too excited about this,I would expect that candidates who were ministerial advisors resigned their position before nomination.

    Very likely.

    But then, I would have expected that people who were born overseas, or whose parents were born overseas, would have checked their citizenship status and renounced as appropriate.

  47. Confused Old Misfit

    So, as long as I remain over 65 years of age, my aged pension would not disqualify me? I mean, they can’t take it away unless I’m younger than 65 can they?
    Now, where did I leave that second passport…

  48. Mundi

    You are forgetting that almost all of these government jobs have re-enstatement provisions.

    They don’t resign from anything, not really.

    Most just resign, are given there leave as a lump sum, then are re-enstated if they lose.

  49. Norman Church

    I thought that “every clould has a silver lining” when I heard that Ms Lambie was required to resign from the Senate. To say that I am not a fan of that Taswegian grifter is putting it mildly.

    But if s44 actually thinned out the number of tax hooverers who could stand for Parliament, that would really would be am outstanding outcome.

    I am a bit doubtful about how far this s44 business will go but one lives in hope.

  50. Des Deskperson

    “The Members of Parliament (Staff) Act 1984 is very clear that Ministerial personal employees are employees of the Commonwealth in all regards – although their employment can be terminated immediately (with compensation) for various political reasons.”

    the MOPS Act sets out the employment arrangements for Ministerial staffers, but says little about their responsibilities and accountabilities. It says nothing about citizenship or merit-based appointment.

    My understanding has always been that they have no legal responsibilities for their actions, they are simply appendages of the Minister, with whom, as the say, the buck stops. The is a Ministerial adviser’s code of conduct, but it is simply a piece of rhetoric with no legal power, at least for all practical purposes.

    Advisers, despite their strong influents over policy, are therefore no more accountable for what goes on in the Minister’s office than the Ministerial desk , chair or strip of carpet.

    In which case, logically,they should be subject to the same citizenship requirements as Ministers.

  51. RobK

    It’s hardly surprising that many potential parliamentarians could be caught by s44 (iv)
    I’m with Dot on this one. A brilliant piece of our constitution. They get go feel the impact of power and perhaps it will be a humbling experience. Generally, they are not as good as they think they are.

  52. Rob MW

    Thought this might interest someone (me)

    Chronology of who had the vote? (NSW – my emphasis)

    This chronology shows major changes to legislation. For more detailed information see the Guide to New South Wales State Archives relating to Responsible Government (Guide 3).

    1843
    •Men (over 21 and British subjects) owning freehold property to a value exceeding £200, or
    •Householders occupying a dwelling house with an annual value exceeding £20.

    A man could vote in every electorate where he held the necessary property for at least six months.

    1851
    •Property qualifications were reduced to men owning freehold property to a value exceeding £100
    •Householders occupying a dwelling house with an annual value exceeding £10, or a pastoral lease.

    1856
    •Franchise qualifications were extended to include men receiving an annual salary of £100 and to those paying £40 per annum for board and lodging and £10 for lodging only.

    1858
    •All adult males who had lived in the electorate for the preceding six months and who were British subjects by birth, or had been naturalised for five years and had resided in the Colony for three years
    •Holders of miners rights were allowed to vote in three Gold Fields electorates

    Unable to vote:
    •Police, serving members of the armed forces, paupers, prisoners and persons of unsound mind were barred from voting.

    1893
    •The property vote was abolished: each elector was allowed to vote in one electorate only
    •The six months residence requirement was reduced to three months, which effectively meant that shearers and itinerant workers could vote
    •Residency requirements meant that British subjects by birth had to live in the Colony for one year and naturalised British subjects had to live in the Colony for a year after naturalisation.

    1896
    •Police regained the right to vote.

    1902
    •Women received the vote.

    Whilst South Australia led the British Commonwealth in granting votes for women in 1894, women gained the right to vote in both Commonwealth and New South Wales elections after the Commonwealth Franchise Act of 1902 and the (NSW) Womens Franchise Act of 1902.

    1911
    •Absentee voting was introduced
    •Members of the armed forces regained the right to vote.

    1955
    •Electors of either sex had to be British subjects by birth or naturalisation and be aged 21 years or more
    •In the case of New South Wales, electors must have lived in Australia for six months, in the state for three months and in the relevant electoral sub-division for one month before enrolment.

    Adult

    Until 1970, “adult” was defined as over 21 years of age, but by 1974 the Commonwealth and other states had amended this to include people aged at least 18 years.

  53. Des Deskperson

    ‘Talk about a cat among the pigeons? There are slews of current parliamentarians who were lobbed into their seats from being ministerial advisers. Should they be deemed to be ineligible under section 44?’

    My comments above were more about the citizenship aspects.

    In regard to the ‘holding office of profit’ aspect of s 44 , I would have thought it pretty simple:

    Ministerial advisers are clearly Commonwealth employees

    Therefore, they are clearly required to resign before contesting, among other things, federal elections.

    This issue is whether any of the current MPs who were previously advisers failed to do so.

  54. Eyrie

    They should resign before running WITH NO SPECIAL PRIVILEGES TO BE RE-EMPLOYED if unsuccessful. Otherwise it is thinly disguised “leave without pay.”

    Don’t see how Queensland local government employees can run for federal parliament. It is the same Crown in both cases. Can we turf some out?

  55. Snoopy

    Ministerial advisers are clearly Commonwealth employees

    Therefore, they are clearly required to resign before contesting, among other things, federal elections.

    This issue is whether any of the current MPs who were previously advisers failed to do so.

    Exactly and if they do resign and subsequently lose the election then it’s not too difficult for the golden child kto get a similar job.

  56. Des Deskperson

    “They should resign before running WITH NO SPECIAL PRIVILEGES TO BE RE-EMPLOYED if unsuccessful. Otherwise it is thinly disguised “leave without pay.””

    An interesting point, although if I recall correctly, being on leave without pay didn’t satisfy the High Court in the Cleary case: he should have resigned.

    I’m not sure of the reasoning behind the right to reemployment of, for example, APS employees who have resigned to contest elections. Presumably it is to ensure that people who want to exercise their right to contest elections are not disadvantaged in their careers.

    There is an argument for this in the case of APS employees, who would otherwise have to go through a competitive recruitment and selection process with no guarantee of a job at the end.

    No such argument exists in the case of Ministerial advisers who, as Snoopy points out, are not required to go through any selection process to get their jobs back. In fact, as I have argued before, the rights and responsibilities of Ministerial advisers are extremely vague.

  57. Pingback: Section 44iv | Catallaxy Files

  58. dauf

    wow, this really would improve the joint and make an even playing field for all the others who have to resign to run. I’m starting to think this whole dual-citizenship drama is the best thing we’ve had in years

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