What a disappointing week. Standing up for integrity in our electoral system seems a tall order in Australia. I am challenging and testing the right to mislead and deceive voter. I am not challenging Josh's citizenship ( S44). Josh is more Australian than I am. That said we are all subject to the same laws.
What a disappointing week. Standing up for integrity in our electoral system seems a tall order in Australia. I am challenging and testing the right to mislead and deceive voter. I am not challenging Josh's citizenship ( S44). Josh is more Australian than I am. That said we are all subject to the same laws.
The last federal election must have been a record for tactics and stunts that were designed to deceive voters and achieve victory at any price, including the value in our belief that our elections are fair.
After the federal election we undertook a review of legal matters relating to the campaign. Given the prevalence of so many breaches and so much questionable behaviour, I would have expected a lengthy list of cases mounting for consideration by the High Court’s Court of Disputed Returns.
Instead, there’s an eerie silence. A cross between fear and intimidation grips Australians who now seem unwilling to utilise the very few rights they have as citizens to protect the integrity of our electoral system, the very system that is fundamental to our democracy.
It was also obvious from our review of candidates’ online citizenship declarations, that the system is failing, and the AEC seems derelict in its duty to ensure compliance with the law.
That must change, and citizens must make a stand for truth, legality and integrity in the election. As structured, the AEC has no duty to review declarations.
Establishing one’s constitutional eligibility to hold office is challenging, but no one should be seeking office if they haven’t undertaken due process to prove their eligibility. There are numerous ways a candidate could be ineligible, and the courts need to be more precise and provide clarity in what the intention was when our constitution was established, for the benefit of both candidates and the voting public.
Having reviewed the S44 citizenship declarations of candidates, many remain uncertain about the question of foreign citizenship. Section 44(i) is the operative clause that excludes anyone from eligibility who “is a subject or a citizen or entitled to the rights or privileges of a subject or citizen of a foreign power”. There seems to be two interpretations of this section of the law and there is clearly a “splitting of hairs” and differing legal applications of maternal vs paternal heritage in some countries.
Without a doubt, the inclusion of S44(i) in the constitution by our forbearers was their way of ensuring elected officials had loyalty only to Australia.
Some candidates have interpreted this section to mean that a person who is not a foreign citizen, but has a right to become one by way of an application, needs to relinquish this right. Others claim that there is no issue with having the right to obtain citizenship by request and it is only where people actually hold citizenship that is the problem. They claim that as the wording doesn’t say “entitled to citizenship” but rather “entitled to rights and privileges of a … citizen” then they are safe. They believe an entitlement to citizenship is not an exclusion from eligibility under section 44(i), but it is only the holding of that citizenship that is the problem.
The “splitting of hairs” in the application of section 44(i) is blindingly obvious for people holding British heritage and extensively used by LNP representatives. If your father was British, you are legally British by descent. If your mother was British you are not automatically British, however, you are entitled to be British by simply filling in a form. You have a right and entitlement to claim citizenship. In other words, you are entitled to the rights and privileges if you ask, but you don’t have such legal rights if you don’t ask. The difference in gender of your UK parent seems illogical for the intended purpose of section 44(i). In both cases you are entitled to be British, live, work and reside in the UK. As it stands, if your father was British you have a problem, but if your mother is British, many members of the LNP are claiming that you are technically in the clear. In both cases, you can remove the right to be British and be “all in” with Australia, but it seems many politicians are not prepared to be “all in” and would rather “split hairs”.
Given the citizenship requirement is enshrined in our constitution and would require a referendum to amend it, the issue will not be going away any time soon. So, it surprises me that the government and indeed the parliament are not seeking urgent court clarity. The consequences of being ineligible are not insignificant. Candidates that are ineligible could change election results for certain seats, render elections void and even if they don’t win, might be obtaining taxpayer electoral funding from the AEC.
Numerous candidates completed the form with apparent disdain by confirming that they had parents that were born overseas, yet then left blank the section requiring details of where their parents were born. Examples include George Zoraya from Chisholm, Christian John Julius from Griffith, Colin Thompson from Dawson and Kenneth Law from Groom. Anne Wicks in Chisholm claimed in her application that she knew where her parents were born in one answer and then said she did not in the very next answer. Angus Young in Stirling simply applied to rescind his UK citizenship, yet the AEC knows the application to rescind citizenship is not enough as you still requires confirmation from the foreign jurisdiction before you loose your foreign citizenship.
The other serious issue is that these candidates will be entitled to taxpayer electoral funding when they might have not even been eligible to stand.
Let’s hope that the AEC is taking care with taxpayers’ money and seeking clarity itself before handing over electoral funding to ineligible candidates. What must also be made clear here is that ineligible votes obtained by ineligible candidates have a profound impact on elections.
I personally think that S44 needs reform. As is clear from the review of candidates at the last election there are problems all over the place. That said the law is the law and whilst it stands anyone standing will need to comply with it.
The biggest shock to me during the election, was the extent of misleading and deceptive conduct by the main political parties in what appeared to be clear breaches of the Electoral Act.
Subsection 329(1) of the Electoral Act provides that “A person shall not, during the relevant period in relation to an election…print, publish or distribute…any matter or thing that is likely to mislead or deceive an elector in relation to the casting of a vote”.
As such, when the Liberal party asserted through fake web sites and dirt mail that I was untrustworthy and in bed with the coal industry or that another Kooyong candidate may have supported female genital mutilation, you would think that such alarming assertions could mislead and deceive a voter about how they vote. Alas no the Liberal Party claims as claims don’t need to be true!. Instead, the major parties claim that can say whatever they like during an election, based on a precedent case where the High Court limited the definition of “misleading and deceptive” to the physical motion of filling in your ballot paper, not how you formed your decision in how to fill in the ballot paper. Really, is that the court’s intention? As it stands, politics seems to be the only industry where misleading and deceptive behaviour is considered a necessary and positive skill set. Is that the way we want our democracy to operate?
We need to appreciate that major parties will not willingly seek a change to laws that will prevent them knowingly engaging in misleading and deceptive conduct. They will not ask the courts to review their legal precedents that are now wilfully abused by parties openly claiming that they are entitled to mislead and deceive voters during election campaigns. We have to do that.
On behalf of many Kooyong constituents who were appalled by these signs, including many in the Chinese community, I will submitted a petition to the Court of Disputed Returns in relation to the signs displayed by the Liberal Party on election day that were in the AEC purple colour and in Mandarin reading “The correct way to vote is to put 1 Liberal then number every other box”. I said I would on election day and I appreciate the crowd funding I have received.
These signs were intended to appear as a directive from the AEC to Mandarin speakers, notwithstanding the tiny Liberal Party authorisation at the bottom, quite perversely only in English. They were clearly designed to deceive voters in how to mark their ballot papers or in other words, how to cast their votes. If these signs and the people that approved them are not considered misleading and deceptive, then basically there is no limit on deceptive and misleading conduct at all.
We must do better than this. Let’s all hope that we can clarify the citizenship rules under our constitution, improve the application of our electoral laws and give the AEC more backbone. Before the next election, we need a demonstrative improvement in truth, legality and standards of integrity in the way our candidates and elected representatives conduct themselves. Australia deserves this for the sake of our democracy.
