Members and Senators of the Australian Parliament: you had one job to do.......

COMMONWEALTH OF AUSTRALIA CONSTITUTION ACT - SECT 44

Disqualification

                   Any person who:

                      (i)  is under any acknowledgment of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power; or

                     (ii)  is attainted of treason, or has been convicted and is under sentence, or subject to be sentenced, for any offence punishable under the law of the Commonwealth or of a State by imprisonment for one year or longer; or

                    (iii)  is an undischarged bankrupt or insolvent; or

                    (iv)  holds any office of profit under the Crown, or any pension payable during the pleasure of the Crown out of any of the revenues of the Commonwealth; or

                     (v)  has any direct or indirect pecuniary interest in any agreement with the Public Service of the Commonwealth otherwise than as a member and in common with the other members of an incorporated company consisting of more than twenty-five persons;

shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.

                   But subsection (iv) does not apply to the office of any of the Queen's Ministers of State for the Commonwealth, or of any of the Queen's Ministers for a State, or to the receipt of pay, half pay, or a pension, by any person as an officer or member of the Queen's navy or army, or to the receipt of pay as an officer or member of the naval or military forces of the Commonwealth by any person whose services are not wholly employed by the Commonwealth. [AustLII, Commonwealth Consolidated Acts, An Act to constitute the Commonwealth of Australia, July 1900]

When nominating to stand as a candidate at a federal general election or a by-election the Australian Electoral Commission supplies all prospective candidates with a 51 page handbook, titled “Candidates Handbook: Federal elections By-elections”.

The intent of this handbook is to explain the steps you will need to take to qualify as a candidate and to comply with the law before, during and after an election.

On Page 8 of the May 2016 edition of the handbook candidates are supplied with a “Checklist”.

The third point on that 15 point checklist is:

I have confirmed that I am qualified to nominate.

Pages 13 to 14 clearly set out “Disqualification under the Constitution” and states:

You are required to sign a declaration on the nomination form that you are qualified under the Constitution and the laws of the Commonwealth to be elected to the Commonwealth Parliament. If you have any doubts as to your qualifications under the Constitution, the AEC recommends you seek your own legal advice. The AEC does not provide legal advice to prospective candidates.

On 14 August Member for New England, Leader of the National Party of Australia, Deputy Prime Minister and Minister for Agriculture and Water Resources, Barnaby Joyce, became the fifth sitting member to announce that he had only now discovered he holds dual citizenship.

According to Michelle Grattan writing in The Conversation on 15 August 2017 Joyce’s dual citizenship came to light after two lines of inquiry in New Zealand: questions from Fairfax Media, and a blogger, to the Department of Internal Affairs, and questions on notice from [NZ] Labour MP Chris Hipkins, following his conversation with Shadow Foreign Minister Penny Wong’s chief-of-staff Marcus Ganley, who’s a Kiwi.

Besides being exposed as the fifth dual citizen sitting in federal parliament, Joyce is now the third parliamentarian and second member of the Turnbull Government to refuse to resign even though he has been ineligible to stand as a candidate at every federal election held since his birth.

MPs and senators all had one straightforward task to complete prior to every federal election at which they stood as candidates and it is becoming increasingly obvious that very few of them actually did so.

They deserve no sympathy for this failure on their part.

UPDATE

The Sydney Morning Herald, 17 August 2017:

A third Turnbull government minister has been caught up in the dual citizenship crisis that has rocked parliament, with Nationals senator Fiona Nash advising she is a British citizen by descent.

Just moments before parliament rose for a two-week break, the deputy Nationals leader told the Senate that she had received preliminary advice from the British Home Office on Monday that she had received dual-citizenship at birth through her Scottish-born father…..

Prime Minister Malcolm Turnbull convened an urgent cabinet meeting just after 6pm, where it was decided, based on advice from the Solicitor-General, that Senator Nash did not have to resign from either the Senate, or lose her cabinet spot as minister for rural health.

An hour later, the deputy Nationals leader told the Senate that she had become the fourth government member to fall foul of section 44's dual-citizenship rule and would refer herself to the High Court when parliament resumed next month.

The Sydney Morning Herald, 17 August 2017:

Twenty-one people sit in the Nationals' Party room in Canberra.

Four of them – just shy of one fifth of the party room – now face questions about the constitutional validity of their election to the Parliament…..

Barnaby Joyce and Nash, National leader and deputy, Matt Canavan – a senate rising star – all face citizenship challenges, while king-making senator Barry O'Sullivan faces questions over family business dealings with the Commonwealth.

One Nation Senator Malcolm Roberts' British citizenship renunciation timeline not clear

https://www.gov.uk/renounce-british-nationality/after-youve-applied

On Sunday 8 May 2016the Prime Minister announced there would be a federal election on 2 July that year.

Writs were issued on 16 May and the rolls closed 23 May 2016.

At 12 noon on Thursday 9 June 2016 close of nominations for both House of Representatives and Senate candidates occurred.

Early voting commenced on 14 June and Election Day ended at 6pm on 2 July 2016.

According to One Nation Senator Malcolm Ieuan Roberts as reported in The Age on 27 July 2017; he wrote to the British authorities on May 1 last year to ask them whether he was a British citizen, given he was born to a Welsh father in India.

He says he got no response so he wrote a further email on June 6 - three days before nominations closed - saying that if he was a citizen he fully renounced. He subsequently nominated as a candidate and won a Queensland Senate seat.

However, this tweet by Chief Political Correspondent, Sydney Morning Herald & The Age, James Massola, throws Malcolm Roberts assertion that he was not a British citizen at the time of nomination into doubt.

It appears that U.K. authorities and Mr. Roberts may possibly have different views of when he ceased to be a British citizen.

I strongly suspect that the High Court of Australia would be inclined to accept the word of the U.K. Government over that of Malcolm Roberts if this difference is confirmed.

Liberal Senator Matt Canavan reveals he has dual citizenship but refuses to resign from the Australian Parliament

COMMONWEALTH OF AUSTRALIA CONSTITUTION ACT - SECT 44, Disqualification, “Any person who: (i) is under any acknowledgment of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power; “

Liberal Senator for Queensland Matthew “Matt” Canavan has admitted to Prime Minister Malcolm Turnbull that he held dual citizenship when he was nominated for the Australian Senate in 2013.

His mother Maria and he, along his brother and sister, were registered as Italian citizens in January 2007. He would have been 26 years of age at the time.

Mr. Canavan knew that his mother was an Italian citizen but would have the world believe that he was unaware that he was so registered until 18 July 2017.

This is the official spin the Turnbull Government is offering the national electorate:

SENATOR THE HON GEORGE BRANDIS QC
ATTORNEY-GENERAL

LEADER OF THE GOVERNMENT IN THE SENATE

SENATOR THE HON MATT CANAVAN

Transcript of Statements on Senator Canavan’s Citizenship, Brisbane

25 July 2017 

ATTORNEY-GENERAL: Yesterday afternoon, Senator Canavan approached the Prime Minister, the Deputy Prime Minister and me to tell us that he had received advice from the Italian Embassy that, according to their records, he was registered as an Italian citizen.   

Senator Canavan will explain circumstances in which he came to be registered as an Italian citizen. In brief, it occurred in 2006 when Senator Canavan’s mother, who is of Italian heritage, registered both herself and members of her family, including Senator Canavan, with the Italian consulate in Brisbane as an “Italian Resident abroad,” which is a form of citizenship. Senator Canavan, who was an adult at the time, did not authorise this to be done on his behalf. The first he became aware that she had done so was when she raised the matter with him on 18 July. He then sought urgent advice from the Italian embassy, which was only confirmed yesterday afternoon.

In the meanwhile, the Government has taken advice from the Solicitor-General and we are in the process of taking advice from experts in Italian citizenship law. It is the Government’s preliminary view that, because the registration was obtained without Senator Canavan’s knowledge or consent, that he is not in breach of s. 44 of the Constitution. Nevertheless, in view of the legal uncertainty concerning the matter, when the Senate convenes on Tuesday week, the Government will move to refer the matter for determination by the High Court.

MINISTER CANAVAN:  Well thank you, George. As George has outlined I have become aware that according to the Italian Government, I am a citizen of Italy. I was not born in Italy, I’ve never been to Italy and, to my knowledge, have never stepped foot in an Italian consulate or embassy. Until last week, I had no suspicion that I could possibly be an Italian citizen. In 2006, my mother lodged documents with the Italian consulate in Brisbane to become an Italian citizen. In doing so, it would appear that she made an application for me to become an Italian citizen as well. I was 25 years old at the time. My mother was born in Australia but was able to obtain Italian citizenship through her parents, who were both born in Italy. While I knew that my mother had become an Italian citizen, I had no knowledge that I myself had become an Italian citizen, nor had I requested to become an Italian citizen.

Following the reporting of Senator Ludlam and Senator Waters last week, my mother raised with me, the possibility that I was in fact an Italian citizen, on Tuesday evening. I have, since then, taken steps to check my citizenship status with the Italian authorities and that has confirmed that I was registered as an Italian citizen in January 2007. The Italian authorities have confirmed that the application for Italian citizenship was not signed by me. To my knowledge, until this week I have not received any correspondence from the Italian authorities about my citizenship status and they have not been able to provide any such records.

In the short time available, I have not been able to obtain definitive legal advice as to whether my registration as an Italian citizen, without my knowledge or consent, was valid under Italian law. I am seeking to obtain that advice presently. On the basis of the advice the Government has obtained, and that George outlined, it is not my intention to resign from the Senate. However given the uncertainty around this matter, I will stand aside until the matter is finally resolved and resign as the Minister for Resources and Northern Australia. I have informed the Prime Minister of that course of action. Thank you.

The bottom line for Mr. Canavan is that by 2013 when he nominated for the Australian Senate he had known his mother was an Italian citizen for at least five years and he did not take reasonable steps to discover if her citizenship by descent had any impact on his own citizenship status.

Matt Canavan should do the honourable thing and resign from parliament immediately as other members of parliament have done before him.

UPDATE

The Courier Mail, 26 July 2017:

It also emerged today that Senator Canavan discussed Italian citizenship with his mother almost a decade ago.

It has also been alleged that the Italian Government has sent him voting forms for the last ten years.

Senators falling like skittles in Canberra

On 1 November 2016  it was the announcement that it was the intention of the Turnbull Government and  Australian Parliament to challenge the validity of the election of Family First Senator for South Australia Bob Day in the High Court on the basis of a potential non-direct pecuniary interest through Fullarton Investments Pty Ltd.

One day later and a similar announcement is made concerning One Nation Senator for West Australia Rod Cullerton in relation to a criminal conviction for larceny prior to the 2016 federal election.

UNCLASSIFIED

SENATOR THE HON GEORGE BRANDIS QC

ATTORNEY-GENERAL

LEADER OF THE GOVERNMENT IN THE SENATE

MEDIA RELEASE­

Senator Rod Culleton

Last Saturday, I wrote to the President of the Senate, the Hon Stephen Parry, to draw to his attention an Opinion which I had received from the Solicitor-General concerning the election of Senator Rod Culleton as a Senator for Western Australia.  I received the Opinion late on Friday, 28 October 2016.  I also provided a copy of the Opinion to Senator Culleton.

The opinion was sought by me on 13 October 2016 in view of issues raised in proceedings commenced in the High Court against Senator Culleton by Mr Bruce Bell. 

It appears that the proceedings brought by Mr Bell are based on an allegation that, at the time of the last election, Senator Culleton had been convicted of an offence punishable by a sentence of imprisonment for one year or longer, and was therefore “incapable of being chosen” as a Senator under section 44(ii) of the Constitution.

The President of the Senate has written to me today to advise that he proposes to bring the matter to the attention of the Senate when it sits on 7 November 2016.  At that time, the Government will initiate a referral of the matter to the High Court pursuant to section 376 of the Commonwealth Electoral Act.

2 November 2016

Please tell me how Family First Senator Bob Day has the gall to remain in the Australian Senate after announcing his resignation

Commonwealth of Australia Constitution:

s44. Any person who:

(i)is under any acknowledgment of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power; or

(ii) is attainted of treason, or has been convicted and is under sentence, or subject to be sentenced, for any offence punishable under the law of the Commonwealth or of a State by imprisonment for one year or longer; or

(iii) is an undischarged bankrupt or insolvent; or

holds any office of profit under the Crown, or any pension payable during the pleasure of the Crown out of any of the revenues of the Commonwealth: or

(iv) has any direct or indirect pecuniary interest in any agreement with the Public Service of the Commonwealth otherwise than as a member and in common with the other members of an incorporated company consisting of more than twenty-five persons;

shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.

s45. If a senator or member of the House of Representatives:

1. becomes subject to any of the disabilities mentioned in the last preceding section; or

2. takes the benefit, whether by assignment, composition, or otherwise, of any law relating to bankrupt or insolvent debtors; or

3. directly or indirectly takes or agrees to take any fee or honorarium for services rendered to the Commonwealth, or for services rendered in the Parliament to any person or State;

his place shall thereupon become vacant.

Make no mistake, the following represents the insolvent liquidation of companies owned by Family First Senator Bob Day and family (with Bob Day as sole director) and foreshadows personal insolvency.  There are 207 houses still under construction and building work halted, an unspecified number of employees having no guarantee of full payment of wages/superannuation/holiday pay owed and, an unknown number of business creditors who will presumably meet with the liquidator in November 2016.

The Australian, 18 October 2016:

Senator Day said Home Australia and its subsidiaries in South Australia. Western Australia, Victoria and New South Wales would be liquidated by McGrathNicol.

“As I have always agreed to sign personal guarantees to creditors, this closure also has serious implications for me and my family,” he said.

“Creditor liabilities greatly exceed our assets so we will also lose our family home.

“As for my role as a Senator, I will of course resign.”

Smart Company, 18 October 2016:

Matthew Caddy and Barry Kogan of McGrathNicol have been appointed as liquidators of parent company Home Australia Pty Ltd, as well as seven wholly owned subsidiaries: Homestead Homes Pty Ltd, Collier Homes Pty Ltd, Newstart Homes (SE QLD) Pty Ltd, Ashford Homes Pty Ltd, Huxley Homes Pty Ltd, Nationwide Australian Investments Pty Ltd, and Smart Road Property Rentals Pty Ltd.

Construction on all homes being built by Home Australia has ceased and the liquidators said in a statement on Monday their “immediate objective is to work constructively with relevant insurers and customers in an effort to facilitate the orderly recommencement of construction of uncompleted homes by alternative builders”.

McGrathNicol is also accepting expressions of interest from potential buyers for the entire Home Australia business or individual parts.

The Guardian, 27 October 2016:

Family First senator Bob Day’s collapsed house building empire owes a total of $37.8m, according to their liquidator.

A spokesman for liquidator McGrath Nichol told Guardian Australia on Thursday that the seven companies owe unsecured creditors a total of $19.6m.

The figure dwarfs initial estimates that unsecured creditors were owed $12.5m.

The companies owe a total of $18.2m in secured debt, of which National Australia Bank is owed $17.5m. Those debts will take priority over the unsecured creditors.

Australian Securities and Investments Commission (ASIC) 26 October 2016:

Name:	HUXLEY HOMES PTY LTD
ACN:	106 443 216
ABN:	41 106 443 216(External Link)
Registration date:	24/09/2003
Next review date:	24/09/2017
Status:	External Administration
Type:	Australian Proprietary Company, Limited By Shares
Locality of registered office:	TEA TREE GULLY SA 5091
Regulator:	Australian Securities & Investments Commission

17/10/2016

7E8438321

Notification of Appointment of Liquidator (Creditors' (505J) Voluntary Winding Up)

Unfortunately for parliamentary democracy, Senator Day appears to have now rethought his statement of 17 October that he was resigning from the Senate and now intends to stay indefinitely as his announcement was apparently only one of future intent.

Wellington Times, 24 October 2016:

……Senator Day issued a short statement.

"I refer Fairfax to my statement last Monday expressing an intention to resign as a result of my family company's problems," he said.

One Adelaide-based expert in receivership and company administration said it was unlikely Senator Day's companies could be wound up quickly and suggested a possible bankruptcy was at least six months away.

Parliament will return on November 7 for three final sitting weeks of the year, with the Senate expected to vote on the two bills used for trigger the July 2 double dissolution election.

Senator Day's vote will be crucial as the government seeks nine out of 11 crossbenchers to support the legislation. If he is not present for the votes, he would seek a pair with Labor.

UPDATE

ABC News, 1 November 2016, 12:37pm:

Family First senator Bob Day has tendered his resignation, effective immediately.

Pressure had been mounting on the now-former senator to resign as his construction company crumbled.

The so-called Prime Minister for Indigenous Australia needs to organize himself - there are only twenty sitting days left before the Aboriginal and Torres Strait Islander Peoples Recognition Act expires

Australian Prime Minister Tony Abbott needs to focus on essentials when Parliament resumes on 9 February 2015.

The Aboriginal and Torres Strait Islander Peoples Recognition Act 2013 ceases to have effect on 27 March 2015.

The Aboriginal and Torres Strait Islander Act of Recognition Review Panel pointed this out when it delivered its final report to the Abbott Government in September 2014, so there is no excuse for extension of this act not being in the first order of business at the commencement of this parliamentary year.

Recognition of Aboriginal and Torres Strait Islander Peoples: review report required by legislation to be handed to federal government by 27 September 2014

Tony Abbott is determined that recognising indigenous people in Australia's constitution is a "national crusade'' that should be important to everyone…. He has promised to finalise a draft form of words for changing the constitution by September. [The Australian, 26 January 2014]

Under federal legislation, An Act to provide for the recognition of Aboriginal and Torres Strait Islander peoples, enacted by the former Gillard Government, a review committee comprising former Nationals MP & Deputy Prime Minister John Anderson, Campaign Director of Recognise Tanya Hosch and Deputy Secretary of the Department of the Prime Minister & Cabinet Mr Richard Eccles, was formed by the Abbott Government in March 2014.

This committee is under a mandatory deadline and has until 27 September 2014 to submit its report to the Federal Government on support for a referendum to amend the Constitution.

Another requirement under this legislation means that the Abbott Government must table this review committee report in the House of Representatives within 15 sitting days of receiving it - that is on or before 27 November 2014.

Thus far there has been no media release from the Minister for Indigenous Affairs concerning receipt of the report.

As has become the norm these days, Abbott & Co. appear to be briefing the media before the Australian Parliament and people:

TONY Abbott’s hand-picked panel advising on a constitutional change to recognise Aborigines has paved the way for delaying a vote as late as the 50th anniv­ersary of the highly successful 1967 “Aboriginal” referendum.

The panel is concerned that the public is not nearly ready for a recognition referendum and has raised the possibility of delaying the vote until 2017 — after the next election.

The foremost recommendation that has gone to the government is that a “council of elders” — indigenous and non-indigenous — be established to oversee and crystallise the referendum model for constitutional change.

The new council would be separate from the other inquiries and panels currently reviewing the future of the referendum.

The recommendations of the review panel, chaired by ­former deputy prime minister John ­Anderson, include the ­creation of a timeline for action as soon as possible.

Recognising that poor public awareness and ­extreme views would threaten any referendum held too soon, the review panel canvassed with the government an “outer limit” for the vote of the 50th ­anniversary of the 1967 referendum, the highest “yes” vote in a referendum in Australia’s history…. [The Australian, 12 September 2014]

Scullion also said it was unlikely the referendum would be put to voters in this term of parliament. He said it would be a “very brave” government who injected this issue into its first bid for re-election. [The Guardian, 9 September 2014]

It seems that the Abbott Government intends to allow the current recognition legislation to lapse on 27 March 2015 without there being a timetable for a national referendum or concrete details of any referendum question.

Well worth repeating: The Age editorial 'Playing Games With Religion In Schools'

Playing games with religion in schools

Date August 1, 2014

The ancient book of Ecclesiastes teaches that there is a time and a place for everything. A time to be silent and a time to speak. There is also a time to pray, if that is what is needed. Whether there is a time and place for students to pray during school lunchtimes, however, is a matter that clearly causes some people enormous concern.

After state Education Minister Martin Dixon issued a ministerial direction about the rules and procedures governing the provision of special religious instruction in government schools, a cry erupted among some Christian groups claiming the rules encroach on basic human rights. Opponents of the directive say it amounts to an attack on religious freedom and free speech, and that it is a step towards outright bans on prayer in schools.

Their rhetoric is inflammatory, and their concerns are misplaced. The government is not banning prayer in school. It is not forbidding students to pray at lunchtime, if that is what they want to do with their meal break. It is saying that prayer forums ''cannot be led'' by teachers or other school staff, by parents, volunteers or visitors. Put another way, if there are prayer groups or meetings of student religious clubs during school hours, then they must not take the form of ''instructed'' prayer. That is a world away from imposing draconian curbs on the rights to religious freedom and free speech.

The rationale is simple. Government schools are secular environments and their primary aim is education. It has been that way since the Education Act of 1872 formalised that public education in this state should be free, secular and compulsory. In 1958, the law was amended to provide an exception allowing non-compulsory religious instruction classes to be held within schools, but on certain conditions and only by accredited providers. It should be noted the law does not bar religious instruction classes being held on state school grounds outside school hours.

The 2006 education legislation states that schools must ''not promote any particular religious practice, denomination or sect'', but it nevertheless allows schools to provide classes of special religious instruction during school hours, only by accredited representatives. To allow non-accredited instructors to supervise religious sessions at lunchtime would be to subvert the system entirely. Mr Dixon's directive provides a framework for schools to ensure they are abiding by the law and not inadvertently providing non-accredited religious instruction classes.

The Age has consistently argued that beyond reading, writing and arithmetic, there is room in schools for the study of the various belief systems and for informed and informative discussion about ethical choices. Education about religion should provide students with sound information about belief structures and religious practices that help shape our world, as well as provide historical context to the role played by religion in our world. A byproduct of all that might be greater social awareness and enhanced tolerance of diversity.

That does not, however, justify a state-backed religious agenda in education. A secular school system should not impose proselytising nor actively sponsor it. If religious instruction is to be conducted at all within the secular school environment, then there must be clear boundaries and rules. Where state schools do provide special classes in religious instruction, who teaches it, how, and when it is provided should all be carefully managed.

Nothing bars students from organising their own religious groups at school; they are not impeded in practising their religion at school. Their fundamental rights are preserved. At the same time, the resources and facilities of the state education system must be directed primarily to education for all

Although the directive mentioned in this editorial applies only to Victorian schools, the debate concerning religion in schools is nation-wide.

Australian High Court slaps down Abbott Government yet again

It would appear that the Australian Constitution and the High Court have become the only effective brakes on the policy excesses of the Abbott Government.

Yesterday, it handed down two more judgments that came hard on the heels of its 19 June ruling that the school chaplaincy program funding was unlawful.

Plaintiff S297/2013 v Minister for Immigration and Border Protection & Anor (PDF 14K) and Plaintiff M150/2013 by his Litigation Guardian Sister Brigid Marie Arthur v Minister for Immigration and Border Protection & Anor (PDF 14K).

20 June 2014

PLAINTIFF S297/2013 v MINISTER FOR IMMIGRATION AND BORDER PROTECTION & ANOR

[2014] HCA 24

Today the High Court unanimously held that the Minister for Immigration and Border Protection ("the Minister") did not have the power under s 85 of the Migration Act 1958 (Cth) ("the Act") to limit the number of protection visas that may be granted in a specified financial year.

The judgment in this matter should be read with the judgment handed down today in the concurrently heard matter Plaintiff M150 of 2013 v Minister for Immigration and Border Protection [2014] HCA 25. 

The plaintiff is a Pakistani national who entered Australia by sea at Christmas Island in 2012.  He did not have a visa and was, therefore, an unlawful non-citizen within the meaning of the Act.  He made a valid application for a protection visa.  The Refugee Review Tribunal determined that he was a refugee within the meaning of the Refugees Convention, satisfying the criterion for a protection visa under s 36(2)(a) of the Act.  However, he has been neither granted nor refused a protection visa because of an instrument signed by the Minister on 4 March 2014, which purported to determine under s 85 of the Act the maximum number of protection visas that may be granted in the financial year ending 30 June 2014.  That maximum number having been reached, the grant of a protection visa to the plaintiff in this financial year would exceed that limit.

Section 85 of the Act provides that the Minister may, by notice in the Commonwealth of Australia Gazette, determine the maximum number of visas of a specified class that may be granted in a specified financial year.  Protection visas are a class of visa provided for by s 36.  Under s 65, the Minister has a duty, after considering a valid application for a visa, to grant the visa if satisfied that certain conditions are met and to refuse to grant the visa if not so satisfied.  Section 65A imposes a duty on the Minister to make a decision on protection visa applications within 90 days.

In proceedings initiated in the High Court, the plaintiff claimed that the instrument limiting the number of protection visas which may be granted was invalid and that the Minister was bound to consider and determine his application and grant him a protection visa.  A special case stated questions of law for determination by the Full Court.

The High Court held that the instrument was invalid.  In light of the time limit imposed by s 65A on the determination of protection visa applications, s 85 did not empower the Minister to determine the maximum number of protection visas that may be granted in a financial year.  The Court ordered that the Minister consider and determine the plaintiff's application for a protection visa according to law.

• This statement is not intended to be a substitute for the reasons of the High Court or to be used in any later consideration of the Court’s reasons.

The Lies Abbott Tells - Part Eight

The first day of the new year saw Tony Abbott at it again - turning the truth on its head.

THE LIE

Prime Minister's New Year Message 1 January 2014:

I will also start the conversation about a constitutional referendum to recognise the first Australians. This would complete our Constitution rather than change it.   

THE TRUTH    

Despite the mainstream media being encouraged to take a position that Abbott is 'reviving' the push for recognition and reporting that the Government has promised to put forward a draft amendment by September but has not set a timeframe for a referendum, the Prime Minister actually has no choice but to begin this so-called conversation in 2014.

Gillard Government legislation, the Aboriginal and Torres Strait Islander Peoples Recognition Act 2013 (assented to on 27 March 2013 and administered by Prime Minister and Cabinet), requires the Abbott Government to review constitutional recognition of Aboriginal and Torres Strait Islander peoples, consider proposals for constitutional change and identify those proposals most likely to obtain the support of the Australian people - commencing this process no later than 26 March 2014 and completing it no later than September 2014.

Sections 4 and 5 of the Act:

4  Review of support for a referendum to amend the Constitution

             (1)  The Minister must cause a review to commence within 12 months after the commencement of this Act.

             (2)  Those undertaking the review must:

                     (a)  consider the readiness of the Australian public to support a referendum to amend the Constitution to recognise Aboriginal and Torres Strait Islander peoples; and

                     (b)  consider proposals for constitutional change to recognise Aboriginal and Torres Strait Islander peoples taking into account the work of:

                              (i)  the Expert Panel on Constitutional Recognition of Aboriginal and Torres Strait Islander peoples; and

                             (ii)  Reconciliation Australia; and

                     (c)  identify which of those proposals would be most likely to obtain the support of the Australian people; and

                     (d)  consider the levels of support for amending the Constitution to recognise Aboriginal and Torres Strait Islander peoples amongst:

                              (i)  Aboriginal and Torres Strait Islander peoples; and

                             (ii)  the wider Australian public; and

                            (iii)  the Governments of the States and Territories; and

                     (e)  give the Minister a written report of the review at least 6 months prior to the day this Act ceases to have effect.

             (3)  The Minister must cause a copy of the report of the review to be tabled in each House of the Parliament within 15 sitting days of that House after the day the report is given to the Minister.

5  Sunset provision

                   This Act ceases to have effect at the end of 2 years after its commencement.

Note:          The 2 year sunset period in this section will provide Parliament and the Australian people with a date by which to consider further the readiness of Australians to approve a referendum to amend the Constitution to recognise Aboriginal and Torres Strait Islander peoples.

                                                                                             
Background

The Expert Panel on Constitutional Recognition of Indigenous Australians Final Report was informed by over 3,000 submissions from organisations, groups and individuals.

The following are its principal recommendations:

Federal Election 2013: A noble promise freely given - or is it?

On 11 August 2013 ABC News reported that; He [Tony Abbott] made a first-term commitment to recognise Indigenous Australians in the Constitution, saying the nation's "soul would not be whole" until that happened.

I’m sure that Australian Opposition Leader Tony Abbott meant that statement made on the federal election campaign trail.

However, like many of his utterances it only tells half the story.

What Abbott does not say is that an act of Parliament passed during Julia Gillard’s’ term as Prime Minister obliges the House of Representatives by 12 November 2014 to begin consideration of the question of whether to call a national referendum on recognition of Aboriginal and Torres Strait Islander peoples in the Australian Constitution and, that this question is then be debated and put to the vote in both the House and the Senate.

As the Aboriginal and Torres Strait Islander Peoples Recognition Act 2013 had bi-partisan support when it was passed, it is highly likely that a referendum will be called no matter who wins government on 7 September this year.

Whether the Yes vote wins such a national referendum is of course up to the Australian people and hopefully acceptance will prevail that there is a need to legally embed in the Constitution a recognition of the traditional owners of the land past and present and their cultures.