Saturday, 29 July 2017

Fine those ineligible MPs $200 a day

If, like me, you find all this discussion of what Section 44 of the Constitution actually means a bit confusing, Background Paper Number 29 Dual·Citizenship, Foreign Allegiance and s.44(i) of the Australian Constitution,prepared back in 1993 for the Parliamentary Research Service might help The author Sarah O'Brien brings together what the High Court has said about the section along with a summary of what our founding fathers had in mind.
Just a couple of snippets that I found of interest. The idea floated by Christopher Pyne of an evil foreign dictator bestowing foreign citizenship on all MPs has been considered by the Court. In one judgment Brennan J stated that as a matter of international law and public policy the Court would not recognise the conferring of nationality by a foreign power which exceded the jurisdiction of the foreign country or which was not based on a bona fide relationship with the person in question.
To take an extreme example, if a foreign power were mischievously to confer its nationality on members of the Parliament so as to disqualify them all, it would be absurd to recognise the foreign law conferring nationality.
I was also intrigued by a reference to this Act:


Penalty for sitting when disqualified
             (1)  Any person who, whether before or after the commencement of this Act, has sat as a senator or as a member of the House of Representatives while he or she was a person declared by the Constitution to be incapable of so sitting shall be liable to pay to any person who sues for it in the High Court a sum equal to the total of:
                     (a)  $200 in respect of his or her having so sat on or before the day on which the originating process in the suit is served on him or her; and
                     (b)  $200 for every day, subsequent to that day, on which he or she is proved in the suit to have so sat.
             (2)  A suit under this section shall not relate to any sitting of a person as a senator or as a member of the House of Representatives at a time earlier than 12 months before the day on which the suit is instituted.

             (3)  The High Court shall refuse to make an order in a suit under this Act that would, in the opinion of the Court, cause the person against whom it was made to be penalized more than once in respect of any period or day of sitting as a senator or as a member of the House of Representatives.

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