Saturday, 9 May 2015

the law and the AEC via a bush lawyer

Here is a letter I have written to Dennis Cowdroy, Tom Rogers and Kevin Kitson as the three most senior members of the Australian Electoral Commission.
It is written by a bush lawyer with only one unit of law at University of New England, please feel free to critique and comment abot the legal aspects of what I have tried to write.

Any grammar nazis out there, please feel free to put the boot in too.

Firstly thank you to your various officers acting in the role of chief or senior legal officer and to members of the board who helped clarify the role of the AEC during elections, in particular your legal impediment of not being able to determine if a person complies with section 44 of the constitution.  As I understand it you are precluded by law and electoral rules set by the Special Minister for State from asking applicants if they comply with section 44 of the constitution.
This same ruling is being used by the Australian federal Police to deny them the opportunity to investigate possible fraud from candidates who did not comply with section 44 of the constitution, the AFP state that they can not ask about citizenship of candidates because you can not ask.
This means the Australian Constitution, specifically section 44, can not be implemented in the way it was intended by the writers of that founding document.
To help resolve this conundrum might I suggest that at future elections you ask the Court of Disputed Returns to determine  if a candidate has been elected properly under section 44 of the constitution .
The AEC has several obligations to the people and the country:-
In the Overview of the AEC  it is stated “The role of the Australian Electoral Commission is to deliver the franchise: that is, an Australian citizen's right to vote, as established by the Commonwealth Electoral Act 1918.” Every vote must be for a legal candidate and delivered in the best way possible.
Electoral roll management “Objective: Voter entitlement for Australians and support for electoral events and redistributions through maintaining an accurate and up-to-date electoral roll.” Every voter must be entitled to feel their vote counts and is being delivered to a candidate entitled to legally stand for election under our laws.
Section 7 (3) of the Commonwealth Electoral Act 1918 says “(3) The Commission may do all things necessary or convenient to be done for or in connection with the performance of its functions.”  This is the most significant part of the electoral act for the points I am trying to make.  The Commission can do almost anything to ensure the proper legal candidate is elected in the proper legal way.
Because of these three simple things and of course our constitution, you as the Australian Electoral Commission must ask the court of Disputed Returns to do what you are unable to do, to ensure the elected candidate is compliant with section 44 of the constitution.  You are bound by the Commonwealth Electoral Act 1918 to ensure all laws of the country are followed; this is set out in section 4B of the act where the Act binds the Crown in the right of the Commonwealth… Put simply this means the Act determines that you the AEC must comply with Australian Constitution as that is part of the right of the Commonwealth.  But as you are precluded from determining or even asking about dual nationalities you the Australian Electoral commission can not  stop an ineligible person from standing for election.
As such after each election where a foreign born candidate has won a seat in the House of Representatives or the Senate you must ask the Court of Disputed Returns to determine their eligibility. This must be done to comply with your own roles, objectives and the Commonwealth Electoral Act 1918.
It will be cumbersome after the next election asking the Court of Disputed Returns to determine thirty or forty candidates comply with section 44 of the constitution, but after that you will have a record of who is and isn’t eligible.
This way of doing things is awkward but necessary under your current scheme of things where you must have all candidates comply with Australian laws but can not check to make sure they actually do comply.  The Court of Disputed Returns will have to do that until the Special Minister for State allows you to save a lot of time and money and ask the candidates to prove section 44 compliance at nomination.
Again, thank you for your help in my quest to have a little bit of our constitution honoured, monitored and complied with.

Yours sincerely
Tony Magrathea

The reply is here

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