First published September 2
I have some experience in the matter of politicians and citizenship for as a private individual I have taken Senator Eric Abetz to the High Court sitting as the Court of Disputed Returns. This case forced Abetz to renounce his German citizenship by Certification immediately prior to the 2010 election and as a result I withdrew. (Download below …)
The Parliament functions as a Club, accessed by chance and with entry controlled by the privileged few. Once elected to the Club a Member is protected, when politically possible, from public humiliation for it is in the interests of them all.
For example, in this context when the Greens requested a proper audit of nomination forms and qualifications for all sitting Members this was immediately opposed by both major parties - for Labor has as much to lose as the Liberals. The public is not aware that there are severe criminal penalties for offences under the Australian Electoral Act relating to the signing of the Nomination Form which provides the initial access to the Club.
Presumably the penalties are high because the Nomination Form is self-policed by the applicant and our Founding Fathers foresaw trouble when those nominating are not liable to the checks and balances of a normal job application. Brandis spoke out against the two Greens’ Senators who resigned from the Senate over dual citizenship suggesting that they repay their salaries and entitlements. This dangerous precedent would have affected others of his persuasion, such as the Deputy Prime Minister now before the High Court, so the subject was never mentioned again.
The major offences in force for the purposes of federal elections are listed in the Commonwealth Electoral Act 1918, and from 24 May 2001 in the revised general offence provisions of the Criminal Code.
The Criminal Code is a Schedule to the Criminal Code Act 1995. There are more than 60 electoral offences, and these may change over time as Parliament amends the relevant Acts:
For a full account of all electoral offences the latest reprint of the Act, and the Criminal Code Act, must be consulted with the benefit of legal counsel where necessary.
I have extracted for consideration:
forging any enrolment or electoral papers, maximum penalty: 10 years imprisonment (Division 144 of the Criminal Code);
making any false or misleading statement in any enrolment or electoral papers, maximum penalty: 12 months
imprisonment (Division 136 & 137 of the Criminal Code)
For a false declaration, in fact or particulars therein, so signed and declared, that one is/was compliant with S44(i), explicitly, as an ‘Eligible’ candidate to stand for election.
If so charged, and found guilty, or under charge, or under sentence for said offence, as detailed above, renders the candidate or sitting Member Incapable of standing for election, or continuing to sit in the Parliament or Senate ... until acquitted.
Actual conviction re the above offence renders the offender incapable of standing as a candidate for election, or Sitting in the Parliament or Senate, for the term of their natural lives.
Each conviction, for each election declaration, faces a maximum penalty of up to 12 months imprisonment.
The Act seemingly does not allow for fines or other penalties.
For fraudulent enrolment or voting offences:
… forging any enrolment or electoral papers, maximum penalty: 10 years imprisonment (Division 144 of the Criminal Code);
… making any false or misleading statement in any enrolment or electoral papers, maximum penalty: 12 months imprisonment (Division 136 & 137 of the Criminal Code)
Source: Australian Electoral Commission (AEC)
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.
Source: Commonwealth of Australia Constitution Act - Sect 46
The Nomination Form
In October the High Court will deliberate on the problems of underestimating the importance of this Nomination Form dot point clauses which were interestingly reworded between elections under the auspices of Senator Abetz then Special Minister of State 2001 - 2006:
I am capable of being chosen and sitting as a Senator (because I am not disqualified by virtue of Section 44 of the Constitution - see reverse side)
For 2004 after Abetz as the Minister had the clause amended:
I am by virtue of Section 44 of the Constitution capable of being chosen or sitting as a Senator
This makes this particular clause far less demanding and more difficult to prosecute before the High Court, and poses the question:
Why would Senator Abetz oversee this important change from “I am not disqualified” to “capable of being chosen”?
The instruction now contained in the Candidates’ Handbook, 2013,
You are required to sign a declaration on the nomination form that you are qualified under the Constitution and the laws of the Commonwealth to be elected to the Commonwealth Parliament.
If you have any doubts as to your qualifications under the Constitution, the AEC recommends you seek your own legal advice. The AEC does not provide legal advice to prospective candidates.
It is against the law to include false or misleading information in a nomination form. Giving false or misleading information is a serious offence. In addition, you must not omit any information if omitting that information would be misleading. The maximum penalty for this offence is imprisonment for 12 months.
I suggest that any candidate, before the High Court or not, who was born overseas and/or who has at least a parent who was born overseas, should have paid particular attention to this clause as the matter is self-policing, and non-compliance is a criminal offence.
When referring the current Citizenship matter to the High Court, the Federal Government had not allowed for the appearance of a “Contradictor” such as Tony Windsor.
This, I suggest, is a bad mistake by Brandis because Windsor is no longer a member of the Club and as a result is not easily controlled.
The “Contradictor” will be in a position to vigorously oppose the claims of Barnaby Joyce before the High Court, rather than the Government putting his case without comment or contradiction.
As contradictor, Windsor may suggest areas for the Court’s consideration that would otherwise be ignored or buried.
To demonstrate that ignorance of the law by a candidate is not a defence.
That the candidate has no entitlement to leniency.
The candidate may be asked if he had read and understood the requirements of the document he was about to sign.
Ask the candidate to acknowledge that he had legally ascertained that he complied with s44(i) and to tender the advice.
To question and check the authenticity of that document.
Ask the candidate if he understood that his signature removed the defence of ignorance and laid him open to criminal charges.
Most importantly, why did the candidate fail to resign once informed of doubt over their citizenship, and further does the candidate understand that under the law this action incurs a punishment?
The consequences of ownership and/or failure to surrender a passport of another country when gaining Australian citizenship.
Penalties, as enforced by Centrelink under the laws created by Parliament, should be applied with equal force to our errant pollies.
The Government will argue that the Parliament is seeking to prevent costs and inconvenience to electors and to prevent the electorate from being defrauded. This is of no consequence as it is the law that has been broken, and in the case of Joyce possibly at least twice, if he has knowingly continued to sit in the Parliament.
I suggest that Senator Brandis and his recently appointed Solicitor General thought that on referring the cases to the High Court the Government could ensure that they could be pushed through on the Government’s advice - the Prime Minister even making this a statement of fact.
Parliament has decided that failure to comply with s 44(i) is a criminal offence therefore the punishments the Parliament has laid down must be applied.
Any candidate can be charged, not just the successful ones.
Why, up to now, has the Constitutional penalty of imprisonment for sitting members seemingly been waived?
Electors are entitled to have the law legislated by Parliament enforced. Windsor can demand that, subject to the finding of the Court, it is.
If it is, and Joyce is found to have committed an Electoral Offence under the Crimes Act, then he is subject to a criminal punishment under a crime of commission, not omission, under Divisions 136, 137, 144 of the Federal Criminal Code.
If the High Court ignores the issue then this would indicate that the Court is willing to ignore the deterrent to criminal behaviour as enshrined in the laws passed by Parliament.
This is why the appearance of Windsor, as the “Contradictor”, changes the Brandis / Turnbull political game to a contest.
Of interest regarding Joyce is that if it is found that he has not been legally elected then prima facie he has committed a crime punishable only with a term of imprisonment. How is it that the Turnbull government is proposing that Joyce can immediately stand again for re-election?
I am putting this up for discussion on Tasmanian Times and I’m hoping for considered contributions and corrections from both Jon Sumby and Garry Stannus.
After revision I will send the end document to Tony Windsor.
30 Aug 2017