Politics and Law chapter 1 and 2 cases

Allegiance to or citizenship of foreign power

Re Canavan and others (2017)HCA45: The citizenship Seven case involved the Deputy Prime Minister, Barnaby Joyce and six Senators. Five were disqualified on S44(1) grounds. 2017/18 some Members of Parliament resigned before they could have been referred to the High Court. Replacement senators were determined to by the High Court were also found ineligible before they could take their seats. Holly Hughes found ineligible to replace senator Fiona Nash.

Section 44

outlines qualifications to sit in parliament- people who have allegiance/citizenship to a foreign power, convicted of treason or crimes with 1 year+ sentence. section 44 is essential for the accountability of parliament and ensures the loyalty of lawmakers to the commonwealth and ensures persons of good character are eligible. Exclusion of employees of state/federal executives ensures a separation of executive and legislative powers + excluding people with financial relationships with the commonwealth prevents conflicts of interest.

Convicted of Treason or crimes with a sentence of 1 year or more

Re Cullerton No2(2017)HCA. He was found ineligible to be elected for office because at the time of the 2016 election he was subject to being sentenced to imprisonment for up to 2 years.

Bankruptcy

Re Cullerton No2(2017)HCA. The Senator was declared bankrupt by the Federal Court in December 2016.

Employed by the Australian government (except ministers)

Mr Cleary was a Victorian State school teacher and Ms Kelly served in the RAAF. Both occupied an ‘office of profit under the Crown’

Having a financial agreement or interest with the commonwealth (conflict of interest)

R v. Day (2017) HCA 14. Mr Fay was a senator who owned a building with offices leased by an Australian Public Service department (AusPost). The rental contract meant that he had a financial agreement with the commonwealth disqualifying him from parliament.

Amato v commonwealth of Australia

Ms. Amato took the federal government to court and won when claiming the government’s method of calculating her income and subsequent welfare payment through computer algorithms that averaged her income was unlawful. this led to the government waiving 470,000 debts and refunding over 700 million to thousands of welfare recipients. shows accountability of government and ministers to the law by independent courts + ordinary people are equal to ministers in the eyes of the law.

Comcare v. Michaela Banjeri 2019

Agency Head could impose sanctions on employees who breached the code of conduct, including termination of employment.

Michaela Banerji’s twitter posts that were critical of that department, employees, policies and administration, government and opposition immigration policies were deemed a breach of the APS Code of Conduct, leading to her termination of employment. She claimed compensation under the Safety, Rehabilitation and Compensation Act 1988 on the basis that she had injury and the code trespassed on her implied freedom of political communication

High court unanimously held that the termination of employment’s purpose was consistent with the constitutionally prescribed representative and responsible government including an apolitical public service so the termination was appropriate and didn’t impose an unjustified burden on the implied freedom.

Commonwealth v. Tasmania (1983)

Conservation Act 1983 that prohibited the clearing, excavation and building of a dam in protected areas, including an area on the Gordon River close to the Franklin River. The rivers were nominated by the commonwealth government to be included in the world heritage list that was established by an international treaty Australia signed. The wilderness around the rivers contain unique features that would be damaged by flooding.

High court decided that external affairs provisions in section 51 of the constitution gave the Commonwealth Parliament the power to make laws that fulfil Australia’s obligations under international treaties. Australia had signed a treaty to protect World Heritage areas; therefore the Commonwealth Parliament was able to make laws to protect Australia’s heritage.

Koowarta v. Bjelke-Petersen and Others (1982)

Queensland government’s official policy said A&TSI people shouldn’t be able to buy large areas of land, so it was blocked. Koowarta complained to the Human Rights and Equal Opportunity Commission made as a result of international treaty on the basis that blocking the sale was discriminatory (racial discrimination act). the issue before high court was that the racial discrimination act was invalid because the commonwealth didn’t have power to pass it since it wasn’t concurrent or specific, meaning the commonwealth had interfered in a state matter. the commonwealth government argued that the external affairs provisions meant they could pass laws according to Australia’s international obligations as a signatory to the CERD (UN Convention on the Elimination of All Forms of Racial Discrimination).High court ruled that it was a legitimate use of the Commonwealth’s power to make laws to implement international agreements.