One set of rules for all!?

One set of rules for all!? Barnaby Joyce citizenship questions


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The High Court will hear cases on the eligibility of Barnaby Joyce and others this week, to sit in federal parliament, due to dual citizenship.

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Peter Mailler.

Peter Mailler.

Would your attitude towards Barnaby Joyce’s citizenship debacle change if you learned he knew that his New Zealand heritage could be an issue years ago and he did nothing about it?

Rumours are flying around that this may well be the case, but in truth it is irrelevant because under the law ignorance is no defence.

The considered opinion of many independent constitutional lawyers suggests the High Court will find him ineligible.

Recently, I wrote about the possible outcome for the electorate if Barnaby is found to have been ineligible to sit in the Parliament.

In the end that outcome comes down to whether or not the High Court deems the 2016 election to have been a valid ballot. 

In response to that article my detractors were quick to dismiss my position based on insisting there would be a by-election because the High Court would rule the ballot was not valid.

This may be the outcome, but Deputy Prime Minister’s and the Nationals’ problems will probably not end there.

There is an issue of potential electoral fraud that will likely need to be resolved - again, it matters not under the law if they meant it or not.

The Australian Electoral Commission has a pretty exhaustive set of rules (published on their website) about candidate eligibility, nomination, elections and election funding including candidate/party reimbursement. 

This last point involves the distribution of taxpayer monies to candidates if they manage to secure enough votes to qualify for the funding.

The funding is calculated on the number of primary votes the candidate attracts if that number exceeds the minimum funding threshold. 

If Barnaby is found to be ineligible and the ballot is deemed to be valid then he would be required to pay back the electoral funding he has received from the AEC because he would in effect have receive no votes.

The money should then be redistributed to the candidates in that contest based on the recounted votes. 

Indeed, it could be argued that this should be applied to the monies from both 2013 and 2016 Lower House elections and the Nationals would also be implicated in this.

If Barnaby is found ineligible and the ballot is subsequently deemed invalid by the High Court then a by-election would be triggered.

If this is the outcome then all candidates would technically have to repay any election funding they had received from the AEC.

This is a simple extension of the logic that if the ballot is invalid then no votes count.

It would seem to me that if the ballot is deemed invalid due to the actions of Deputy Prime Minister and his party, then any and all of the candidates in the New England contest would have a very strong case for a civil action against them both.

This would be based on the cost of contesting the last ballot and to subsequently recontest the ensuing ballot. 

A civil case could be pursued regardless of whether or not there is a criminal prosecution for the receipt of the public monies Barnaby and the Nationals were not entitled to under electoral law.

There is a profound principle in play in this matter.

No individual or party should be excused from their obligations under the Constitution.

If Barnaby Joyce is found to have been ineligible to sit in the Parliament then he and the Nationals should be held to full and absolute account. 

Pauline Hanson was sent to jail for far less compelling breaches of our electoral laws.

I am just a farmer and my opinion on the law may not be that valuable.

However, as a voter and taxpayer, my opinion on the fairness of the system and the need to apply it equitably to all comers should be respected.

Of course, if the High Court deems the Deputy Prime Minister was and is eligible to sit in the Parliament then good luck to him.

* there is a variation on the mechanism for resolving the flow of electoral funds in the Senate ballots which does not implicate the individuals in the same way as in the Lower House.

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