Tag Archives: eligibility
The Section 44 soap opera: why more MPs could be in danger of being forced out
H. K. Colebatch, UNSW
One thing we learned from the recent election campaign is that the political crisis over Section 44 of the Constitution has not gone away.
Many candidates in the election had their eligibility to stand for parliament questioned and some were even forced to withdraw from their races.
Despite all the attention given to this matter over the last couple of years, and the various procedures introduced to address it, Section 44 will only continue to be a problem until the parliament steps in to address it.
To do that, we first need to address seven myths about Section 44.
1. Everyone knows their citizenship, they just need to do their paperwork
Section 44 is about more than just citizenship – it covers a variety of restrictions on who can serve in parliament.
For instance, a GP who bulk-bills a patient could be considered to have a "pecuniary interest in an agreement with the Commonwealth." And a postman or a nurse in a public hospital could be deemed to hold "an office of profit under the Crown."
On citizenship, the section doesn't just disqualify dual citizens, it also bars those "entitled" to citizenship elsewhere (even if they haven't applied for it) and those "entitled to the rights and privileges" of citizenship (basically, the "right of abode", or being entitled to enter a country and live there).
Such entitlements are not easy to discover and almost impossible to remove, because they're embedded in foreign legislation.
How the Australian Constitution, and its custodians, ended up so wrong on dual citizenship
2. It doesn't affect many people
On the contrary, the parliamentary committee investigating the matter estimated half the adult Australian population, or more, could be disqualified by law or impeded in practice from standing for parliament.
In the recent election, we saw one potential candidate withdraw because she was an Australia Post employee and another because she was entitled under Indian law to some privileges of Indian citizenship.
As a result, the Australian parliament becomes even less representative of the Australian people.
3. The constitution framers knew what they were doing
The original text agreed to at the constitutional convention in 1898 simply said anyone who had acquired foreign citizenship by their own act was disqualified from standing for parliament.
The text that eventually became Section 44 was inserted surreptitiously by one of the key architects of the constitution (and Australia's first prime minister), Edmund Barton, as a drafting amendment. He introduced 400 amendments on the second-to-last day of the convention, but made no mention of this change, and expressly denied there had been any changes to Section 44 apart from a minor one to another subsection.
Could Section 44 exclude Tony Abbott and Barnaby Joyce from parliament?
4. The High Court has sorted it out
Far from it. Very few cases challenging Section 44 have made it that far, partly because the court has done everything possible to fend them off, including trashing the constitutional provision giving citizens the right to challenge the eligibility of parliamentarians. Politicians have also refused to refer cases to the court unless it's advantageous to their party.
And when the court has heard a case, it has construed its task so narrowly as to give little guidance to future action on the section. In particular, it has said nothing about the disqualification of those MPs "entitled to the rights and privileges of citizenship" in other countries.
In fact, when Senator Matthew Canavan's eligibility was challenged because Italian laws had changed to permit citizenship to descendents of native Italians, the High Court noted that the law was fairly generous, but one had to apply. Canavan hadn't applied, therefore couldn't be an Italian citizen.
But if he had applied and then received Italian citizenship because he was eligible (as his brother had done), he would have been disqualified by Section 44.
This was all too much for the court to sort out. As a result, it offered no clarity on the large number of MPs whose eligibility hangs on what sorts of "entitlement" would disqualify them.
Senator Matthew Canavan was not disqualified after the High Court ruled his Italian citizenship was 'potential,' not actual.
Mick Tsikas/AAP
5. But there are administrative checks now, too
Well, yes, but nobody does anything about them. In 2017, all MPs were asked to fill out a form documenting their ancestry and citizenship, and the responses were then logged in a citizenship register. This showed some 15-20 MPs were entitled to foreign citizenship and a total of 59 had the "right of abode" in the UK, which the High Court has decided is the key to the "right and privilege" of citizenship.
But no action was taken on any of these cases. The register appears as a matter of record only.
Enough is enough on section 44: it's time for reform
Similarly, although the Australian Electoral Commission is now requiring candidates to complete a similar form, it does not take action against those who refuse to submit it, or leave sections blank. One candidate was referred to the police, but this was clearly a pointless face-saving exercise.
6. We want our MPs to be unequivocally Australian
Having foreign ancestry does not make you un-Australian. Section 44 does nothing to establish the strength of identity or loyalty – it simply prevents an undefined, but potentially very large, slice of the population from standing for parliament.
One case illustrates the ludicrous reach of the present wording.
After Lithuania regained its independence in 1990, it passed a citizenship law that gave people born outside the country to Lithuanian parents the right to citizenship. In 2016, this provision was expanded to cover those with Lithuanian grandparents. As a result, Senator Doug Cameron, whose Scottish burr we are used to hearing on news broadcasts, became eligible for Lithuanian citizenship.
While Cameron could (and did) renounce his British citizenship to qualify for election to the Australian parliament, he cannot renounce his entitlement to Lithuanian citizenship. And while some people have very strong views about Cameron, I have never heard it suggested he was working to a Lithuanian agenda rather than an Australian one.
Senator Doug Cameron was born in Scotland, but his grandparents are from Lithuania – a fact he had to disclose on the new citizenship register.
7. It's too hard to change the Constitution
The same thing was said about amending the Marriage Act to permit same-sex couples to marry. The public recognises there's a problem with Section 44 and it expects the politicians to fix it.
The best shot came with the Joint Standing Committee on Electoral Matters, which recommended adding the words "until the parliament otherwise provides" to Section 44. This would not change the law, just where the law is made.
Instead of disqualifications being defined by the laws in foreign countries, as the High Court has interpreted Section 44, they could be determined by the Australian parliament. This is how qualifications of senators and members are currently decided. It's also how women got the vote in 1902.
If this proposal was strongly supported by all the parties and clearly explained to the electorate, it would likely pass in the next election.
It all comes down to leadership. Up to now, both the Coalition and Labor have been primarily motivated by partisan advantage: how can we use Section 44 to score a political point?
The Joint Standing Committee showed that with a willingness to collaborate, there is a path forward to solving the problem. The best we can hope for is that after the trauma of the last few years, and the evidence of the continuing decline in support for the main parties, political leaders will see that acting constructively on Section 44 might actually be in the best interests of both parties.
H. K. Colebatch, Visiting Professorial Fellow, UNSW
Posted in Australia, news, Politics	| Tagged article, Australia, citizenship, constitution, dual citizen, eligibility, MPs, news, Parliament, Politics, section 44 | Leave a comment
Solicitor-General's advice on Dutton's eligibility to come before Friday Liberal vote
Michelle Grattan, University of Canberra
Prime Minister Malcolm Turnbull will invite a leadership "spill" motion at midday Friday, once a majority of Liberals formally ask for a party meeting.
He will not contest the subsequent ballot if – as anticipated – the spill is carried, Turnbull announced to a lunchtime Thursday news conference.
Before the meeting, the Solicitor-General on Friday will provide an opinion on the constitutional eligibility to sit in parliament of challenger Peter Dutton.
Early Thursday afternoon, the final signatures for the party meeting request were being gathered.
The delay and the early provision of the Solicitor-General's advice give Treasurer Scott Morrison extra opportunity to build support for his own bid for the leadership as an alternative to Dutton.
After a morning of chaos and multiple ministerial resignations, including that of Senate leader Mathias Cormann, Turnbull told his news conference that if he is ousted he will quit parliament – increasing the prospect of an early election.
He said he had "made it very clear that I believe former prime ministers are best out of the parliament".
The government has a one seat of majority and his seat of Wentworth, although it has a strong margin, would be vulnerable in a byelection because Turnbull is personally very popular there. A byelection would not be needed if there were an early election.
Turnbull said that assuming the spill was carried, the new prime minister would "have to obviously satisfy the Governor-General that they can command a majority on the floor of the House of Representatives.
"In the case of Mr Dutton, I think he'll have to establish that he is eligible to sit in the Parliament."
Turnbull delivered a swingeing attack on those who have undermined him.
"A minority in the party room, supported by others outside the parliament, have sought to bully, intimidate others into making this change of leadership that they're seeking.
"It's been described by many people, including those who feel they cannot resist it as a form of madness," he said.
"It is remarkable we're at this point, where only a month ago we were [in the public polling] just little bit behind Labor and in our own polls a little bit ahead – but in any view thoroughly competitive."
Turnbull has been under consistent assault not only from Tony Abbott and other Liberal critics over a range of issues, especially energy policy and immigration, but also from commentators in the Newscorp media, especially on Sky, and from shock jocks on 2GB.
Turnbull said that what was happening was "a very deliberate effort to pull the Liberal party further to the right."
Stressing how vital it was to resolve the issue of Dutton's eligibility, he said: "This is a very, very significant point. As we all know, section 44 has been a companion of this 45th parliament.
"I cannot underline too much how important it is that anyone who seeks to be prime minister of Australia is eligible to be a member of parliament – because a minister, let alone a prime minister, who is not eligible to sit in the House is not capable of validly being a minister or exercising any of the powers of a minister."
Legal experts suggest Dutton could be ineligible under the constitution's section 44 provision on pecuniary interests. This says a person is incapable of sitting if they have "any direct or indirect pecuniary interest in any agreement with the Public Service of the Commonwealth".
Dutton through a family trust has an interest in child care centres that receive Commonwealth funding. The key question is whether this involves an agreement with the public service.
Dutton's legal advice is that he has no constitutional problem, and on Thursday he issued updated legal advice.
The government shut down the House of Representatives but does not command the numbers in the Senate so had to endure question time with senior ministers who had resigned on the backbench.
UPDATE: JULIE BISHOP JOINS THE RACE
Liberal deputy and Foreign Minister Julie Bishop will throw her hat into the leadership ring.
Bishop, from Western Australia, has been deputy Liberal leader since 2007 under multiple leaders. She is a moderate, rates well in the opinion polls, and has a high profile internationally as well as locally. She is in much demand from backbenchers to visit their seats and is a good fund raiser.
But she will go into the ballot with the disadvantage of having made many enemies in a long political history.
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Her entry into the field complicates the situation and makes the outcome even less certain.
Michelle Grattan, Professorial Fellow, University of Canberra
Posted in Australia, Julie Bishop, Liberal Party, Malcolm Fraser, news, Peter Dutton, Politics, Scott Morrison	| Tagged advice, article, Australia, challenge, eligibility, Julie Bishop, leadership, Liberal Party, Malcolm Turnbull, news, Peter Dutton, Politics, Prime Minister, Scott Morrison, solicitor-general, vote | Leave a comment
ISRAEL: MESSIANIC JEW WINS SUPREME COURT BATTLE
Bakery owner had lost her Jewish dietary law certificate because of her faith.
JERUSALEM , July 15 (Compass Direct News) – For three long years a Jewish believer in Christ struggled to keep her bakery business alive after the Chief Rabbinate of Israel, the country's highest religious governing body, annulled her kashrut (Jewish dietary law) certificate because of her faith.
Pnina Conforti, 51, finally gave a sigh of relief when the Israeli Supreme Court on June 29 ruled that her belief in Jesus Christ was unrelated to her eligibility for a kashrut certificate. While bakeries and restaurants in Israel are not required to obtain such a permit, the loss of one often slows the flow of customers who observe Jewish dietary laws and eventually can destroy a business.
Conforti said that the last three years were very difficult for her and her family, as she lost nearly 70 percent of her customers.
"We barely survived, but now it's all behind us," she said. "Apparently, many people supported us, and were happy with the verdict. Enough is enough."
Conforti, who describes herself as a Messianic Jew, had built her Pnina Pie bakeries in Gan Yavne and Ashdod from scratch. She said her nightmare began in 2002 with an article about her in "Kivun," a magazine for Messianic Jews in Israel.
"Soon after, the people of the Rabbinate summoned me and told me that my kashrut certificate was annulled because I do not profess Judaism," she said.
Food prepared in accordance with kashrut guidelines is termed kosher, from the Hebrew kasher, or "fit," and includes prohibition of cooking and consuming meat and diary products together, keeping different sets of dishes for those products, and slaughtering animals according to certain rules. News of the faith of the owner of the Pnina Pie bakery in Gan Yavne spread quickly, soon reaching extremist organizations such as Yad le'Achim, a sometimes violent Orthodox Jewish group.
"They spread around a pamphlet with my photo, warning people away from acquiring products from my business," Conforti said. "One such a pamphlet was hung in a synagogue. However, I refused to surrender to them and continued working as usual."
Four years later, in 2006, Conforti decided to open another patisserie in Ashdod, near her original shop in Gan Yavne, in southern Israel. The business flourished, but success didn't last long.
"A customer of mine, an Orthodox Jew from Ashdod, visited his friends and relatives in Gan Yavne," she said. "There in the synagogue he came across a pamphlet from 2002 with my photo on it. In addition to boycott calls, I was also described as a missionary. My customer confronted me, and I honestly told him I was a believer."
Soon thereafter the Rabbinate of Ashdod withdrew the kashrut certificate from her shop there, she said.
"Pamphlets in Hebrew, English and French about me begun circulating around the town," Conforti said. "They even printed some in Russian, since they saw that the customers of Russian origin continue to arrive."
The withdrawal of the certificate from the shop in Ashdod in 2006 was a serious blow to her business. Conforti decided to take action, and her lawyer appealed to Israel's Supreme Court. Judges Yoram Denziger, Salim Jubran and Eliezer Rivlin ruled that the Chief Rabbinate of Israel overstepped its authority.
"The Kashrut Law states clearly that only legal deliberations directly related to what makes the food kosher are relevant, not wider concerns unrelated to food preparation," the panel of judges wrote.
In response, the Chief Rabbinate accused the judges of meddling in religious affairs.
Soon after she petitioned the Supreme Court, Conforti said, the Chief Rabbinate had offered her a deal by which it would issue her business a kashrut certificate but with certain restrictions, such as handing the keys of the bakery to a kashrut supervisor at night. Conforti declined.
Tzvi Sedan, editor-in-chief of "Kivun," said the Supreme Court verdict was paramount.
"It's important not only for Messianic Jews, but also for every other business owner who has to suffer from the arbitrariness of the Rabbinate," Sedan said. "But I still want to see this decision implemented fully in reality."
At press time Conforti still hadn't received the certificate. She was waiting for a team of inspectors from the Rabbinate to inspect the business prior to issuing her the certificate.
A Jew of Yemenite origin, Conforti said she was raised in religious family but came to trust in Christ following her encounter with a Christian family during a visit to the United States.
"There I found Christ and embraced him as my personal Savior," she said. "I do not engage in [evangelistic] activity, but if someone starts a conversation about my faith, I will speak openly about it."
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CHINA: TORTURED CHRISTIAN LAWYER ARRESTED AS OFFICIALS DENY ABUSES
Detailed evidence of human rights violations omitted from U.N. summary report.
DUBLIN, February 11 (Compass Direct News) – A Christian defender of human rights in China – whom authorities detained last week – detailed state-sponsored torture he suffered in 2007 in an open letter released on Monday (Feb. 9), the same day advocacy groups criticized a U.N. review of China's treatment of Christians and other minorities for omitting serious abuses.
While a Chinese delegate at the U.N. review asserted that China would never allow torture against religious members or other minorities, the open letter by Christian lawyer Gao Zhisheng – whom officials seized from his Beijing home on Feb. 4 – described 50 days of beatings and electric shocks on his mouth and genitals by state-sponsored thugs that left him desperate to die.
Gao and his family authorized China Aid Association (CAA) to release the letter, written on Nov. 28, 2007, when Gao was under house arrest in Beijing. Currently Gao's whereabouts are unknown, according to CAA.
The letter gives a detailed account of torture he suffered in September and October of 2007. Gao said his official captors – some of whom he recognized – referred to a report he had written earlier on the torture of Falun Gong members and warned him that he was about to experience the same treatment. They urinated on Gao and repeatedly prodded his body, mouth and genitals with electric shock batons. Other methods used were too graphic and "horrible" to describe, Gao said.
Officials later asked Gao to write articles cursing Falun Gong and praising the government. When he refused, they pressured him to write a statement saying that Falun Gong practitioners had given him false evidence of torture, and that – despite constant harassment – the government had treated him and his family well. Gao said he signed this statement, as well as others in which he confessed to sexual impropriety, after beatings that left him unrecognizable and the insertion of toothpicks into his genitals.
"I can't use any language to describe the helplessness, pain and despair that I felt then," he wrote. "Finally I made up stories, telling them about affairs that I had with four women. After more repeated torture, I had to describe how I had sex with each of these women. This continued until dawn the next day."
Skewed Review
During the U.N. review of China's human rights record on Monday (Feb. 9), Chinese delegate Song Hansong of the Supreme People's Procuratorate said that use of torture to obtain evidence was a criminal offense and that China had "established a comprehensive safeguard measure against torture in all our prisons and detention facilities."
"China is firmly against torture and would never allow torture to be used on ethnic groups, religious believers or other groups," Song said.
Louis-Martin Aumais, speaking for Canada, had asked that China follow recommendations of the Committee Against Torture, particularly on the inadmissibility in court of statements obtained through torture. He also asked that China ensure fundamental legal rights for those detained on state security charges, including access to counsel, public trial and sentencing and eligibility for parole.
Australian representative Caroline Millar welcomed improvements in China over the past 30 years but expressed concern over "reports of harassment, arbitrary arrest, punishment and detention of religious and ethnic minorities."
Li Baodong, ambassador and permanent representative of China at the United Nations, said that 50 government departments were working on a national human rights plan to be implemented this year and in 2010.
Rights groups such as CAA and Human Rights Watch stated that a summary of reports submitted for the review omitted documented details of serious human rights abuses, including the treatment of Christians and other minority groups. Omitted documentation that Non-Governmental Organizations had submitted included evidence of mistreatment of Christians, Tibetan and Uyghur minority groups and human rights defenders.
Documented Abuses
Harassment of house church Christians increased significantly last year, according to a CAA report released on Feb. 5. A total of 2,027 Christians were affected in incidents reported to CAA in 2008, compared with 788 people in 2007. Of the 2008 total, 764 Christians were arrested and detained, most for brief periods, and 35 were sentenced to prison terms or re-education through labor.
In Beijing, the total number of people persecuted was 539, up 418 percent from the 104 reported in 2007, CAA said.
"This is not hard to understand, because whenever the government holds important social events, serious suppression is implemented to maintain the appearance of stability through spreading fear among people," the report states. "Beside the factor of the Olympic Games, we cannot ignore that the persecution of Christianity and of some other religions serves as an essential policy of the atheist Chinese Communist government."
Local governments in China last year reported on continued measures to prevent "illegal" religious gatherings and curb other criminalized religious activities, according to reports from the U.S. Congressional Executive Commission on China (CECC) on Dec. 20 and Feb. 2. The commission consists of nine senators, nine house representatives, and five senior administration officials appointed by the U.S. president.
From information provided on a local government website, the CECC learned that authorities in Hechuan district, Chongqing municipality last October had launched a six-month campaign to root out "illegal venues for worship." Authorities were concerned about "anti-Chinese political forces" using Christianity to "infiltrate the area" and outlined a five-point plan to address illegal worship sites, including the "transformation through re-education" of Protestant members of unauthorized meeting places.
A website of the Wuhan municipal government in Hunan province described draft legislation aimed at curbing freedom of worship in private homes; the new law would permit only immediate family members to take part in such gatherings.
The United Front Work Department in Fuzhou city, Jiangxi province, responsible for the oversight of religious communities, reported last year that work to "transform and expand the patriotism of underground Catholic forces" was a key objective, as these forces were exerting a negative impact on the city, according to the CECC. The Fuzhou department report also expressed concern about unauthorized Protestant preaching.
A Xinjiang government website also detailed a campaign to educate children and young people against ethnic separatism and illegal religious activities, according to the CECC.
Evidence from these sources concurred with reports from watch groups such as CAA regarding the closure of house churches, detention of house church members and harassment of house church leaders, the commission said.
Arrests on 'State Security' Charges
In Xinjiang, Uyghur Christians Alimjan Yimit (Alimujiang Yimit in Chinese) and Osman Imin (Wusiman Yaming in Chinese) both detained on state security charges, remain behind bars – one sentenced, the other still waiting for a trial date.
In a closed trial in September 2007, the Xinjiang State Security Bureau (SSB) had sentenced Osman to two years of re-education through labor for "revealing state secrets" and "illegal proselytizing." Associates, however, said he knew nothing about state matters and was arrested for being an outspoken Christian and a leader in the Uyghur church.
Officials had called for a 10-15 year criminal sentence, but after international media attention they significantly reduced the term.
Xinjiang court officials returned Alimjan's case to state prosecutors in May last year, citing lack of evidence on charges of "inciting secessionist sentiment" and "collecting and selling intelligence for overseas organizations." State prosecutors returned the case to court officials in mid-October for reconsideration.
During Alimjan's employment with two foreign-owned companies, SSB officials regularly called him in for interrogation, forbidding him to discuss the questioning with anyone. In September 2007, they closed the business Alimjan worked for and accused him of using it as a cover for "preaching Christianity among people of Uyghur ethnicity."
Officials have since denied regular visits from lawyers or family members and threatened to hand down a sentence ranging from six years in prison to execution.
Lawyers had hoped for an early acquittal for Alimjan based on unfair treatment due to his Christian beliefs, but a lengthy bureaucratic process has dimmed these hopes.
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