In Defiance of The Australian Constitution? By Philip Benwell

     With everything that is happening in regard to elected members and senators of the federal parliament being found to have been elected unconstitutionally and therefore non-members, thought is being given to legislation that has either been passed or defeated reliant upon the votes of these non-members.

     The High Court, in the 1907 case of Vardon v O’Loghlin, ruled that, where the election of a senator is invalid, the return of that senator:

… is regarded ex necessitate as valid for some purposes unless and until it is successfully impeached. Thus the proceedings of the Senate (and presumably the House of Representatives) as a House of Parliament are not invalidated by the presence of a senator without title. The Court confirmed this more recently in Re Wood (1988).

     However, one wonders whether this would apply in the case of Barnaby Joyce who has been found to be a citizen of New Zealand but who is required by the prime minister to remain in the Parliament and in office. If Barnaby Joyce votes in the Parliament knowing that he is a citizen of what is considered to be by the High Court a ‘foreign power’, then it may be found that he, together with the prime minister, have purposely defied the constitution?

     Barnaby is a monarchist and I have written to suggest that, for the sake of his own integrity, he stands aside and certainly does not participate in any vote of the Parliament.

     Section 44 (i.) of the Australian constitution states that a person cannot be a member of the Parliament if he or she:

“Is under any acknowledgement of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights & privileges of a subject or citizen of a foreign power...”

     As far as the first part is concerned, these MPs and Senators have sworn or affirmed allegiance to the Queen her heirs and successors and that would perhaps be something to be taken into account, but the fact is most take no notice of the allegiance they have declared and in fact do the exact opposite and work to remove the Queen from our constitution.

     The highest court in the land looks on any country that is not Australia as a: ‘foreign power’. Some feel that the Commonwealth should be excluded, but they perhaps forget that the Commonwealth also includes Malaysia, India and much of Africa. Similarly the realms do not only comprise the UK, Canada and Australia but also Papua New Guinea and Jamaica as well as other smaller countries.

     Rather than change the constitution or rely upon individuals and political parties to regulate these requirements, it would be far better for the Australian Electoral Commission to fully explain the obligations of any candidate for political office insofar as the constitution and the law is concerned rather than just stating 'a citizen or subject of a foreign power' because, as we have seen, many are unaware that they are citizens of another country.

     A statutory declaration by the candidate of his or her position in this regard and the checks that he or she has made should be provided. Failure to do so or any inaccurate declaration should result in that candidate being removed as a candidate for election. For too long politicians have treated the constitution with disdain and now it has come back to bite them and, moreover, is now threatening the very survival of the government.

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