There are three methods of challenging the qualifications of a Senator. Under each method the challenge is determined by the High Court sitting as the Court of Disputed Returns under the Commonwealth Electoral Act 1918.
• A case can be initiated by a candidate or voter, within 40 days of the Election result being declared through the return of the writ via a petition to the High Court under the Commonwealth Electoral Act disputing the result under sections 353 and 357.
• The Senate may at any time by resolution refer a question relating to the qualifications of a senator to the High Court under section 376 of the CEA; the motion is categorised as Business of the Senate and therefore has priority over other types of business at most times. The Court may declare that a senator is not qualified.
• It is also possible that any person may seek enforcement of a penalty against a person who has taken a seat in the parliament in breach of the Constitution or electoral act. This right to sue is created by the Common Informers (Parliamentary Disqualifications) Act 1975.
An approach directly to the High Court by an individual is prevented by a Statute of Limitations if a petition is not placed within 40 days from the day the election result or writ is returned. Abetz for his nominations in 1994, 1998, 2004 is therefore outside this avenue of appeal. If Abetz is elected in 2010 I can and will proceed to the High Court acting as the Court of Disputed Returns using as the basis of my case information published on Tasmanian Times.
The second avenue detailed above allows an individual citizen from his electorate to ask the Senate to adjudicate over its own and if a problem is discovered for the Senate to put a question over a Senator’s qualifications before the High Court. This I have attempted during Abetz’s current term to no avail.
It can be initiated even if it concerns one of their own. On 10 May 2002 Senator Nigel Scullion wrote to the President of the Senate identifying the possibility that a contractual relationship between his family company and the Commonwealth might put him in breach of section 44(v) of the Constitution, making him the ineligible to sit as a Senator, the Senate proved reluctant to deal with the case. It took 16 months for the Senate even to decide to seek external legal advice. It was another five months before the legal advice was tabled in the Senate, which concluded that Senator Scullion had avoided breaching section 44(v).
I ask, is the Senate some form of Gentleman’s Club?
I wrote a letter regarding Abetz to the President of the Senate, Senator Paul Calvert, dated 26th March 2007; he replied in part, “You are of course free to ask another Senator to table the documents.” (Document 1) I wrote to Senator Milne giving her my paperwork over Abetz on the 11 April 2007; I enclosed for Senator Milne’s perusal my letters to the Clerk of Senate, Harry Evans and his reply of 15/Mar/2007 (Document 2); also my letter to the then President of the Senate, Senator Calvert. Senator Milne was not prepared to raise the matter in the Senate.
As I could not find a Senator to lay the matter before the Senate and Calvert had seemingly ducked his obligations I waited for a change of President and wrote to Calvert’s replacement, Senator Ferguson, on 23rd July 2008 (Document 3) who was also seemingly unable to act!
With the election of a new President to the Senate I wrote to Senator Hogg who was similarly evasive; this caused me to reply:
Wednesday, October 15, 2008
The Hon John Hogg
President of the Senate
Canberra ACT 2600
My request re Abetz to be tabled before the Senate.
My letter of the 3rd September to you was a request for the Senate to act in accordance with its obligations under section 44 of the Australian Constitution. As my letter and the comments of Senator Best make clear Parliament has reserved this right to itself by denying the Electoral Commission the power to act in regard to the qualifications required as set out in section 44(1).
Your role as President is not that of a passive member subject only to the wishes and/or direction of the Senate. The President’s role includes that of being an active participating member as well as the presiding officer whose chief function is to guide and regulate the proceedings in the Senate, in addition the President has a duty to see that the powers and privileges of the Senate, as provided by the Constitution, are observed.
The President is the spokesperson and representative of the Senate in dealings with, amongst others, the Governor-General, the House of Representatives and persons, such as myself, a Tasmanian elector with a query over the qualifications of a Tasmanian Senator and his right to sit in your House.
When the Parliamentary Privileges Bill was before the Senate in 1987 the bill was moved by the President. The President said that he took this action due to the importance of maintaining parliamentary privilege. This was to strengthen the protection of the Senate from actions by the Courts.
Your response as President is clearly a refusal to act, by declining to exercise the authority vested in your office under the Constitution, which carries with it a responsibility to bring the matter to the attention of the Senate. As a result, the Senate by failing to consider the issue of qualifications in accordance with its obligations under section 44 alters the issue to one of failure to observe the Constitution rather than an investigation into the qualifications of a Senator.
I shall now refer the matter to the High Court, I shall state in this referral that I am not happy when Senators are protected by their President from the people they are supposed to represent. Your dereliction of duty in this matter is such that I will ask the High Court to call you to account for failing to act in accordance with the Constitution which you are bound, through your position as President to protect.
cc: Harry Evans, Clerk of the Senate
If the Senate had acted as required by law and my submission had been placed before the High Court Abetz may no longer be sitting in the Senate. As a result it would be most unlikely that the Liberal Party would place him No 1 on the Ticket in 2010.
I would like to thank Lindsay Tuffin for publishing this series of articles, Sue Neales of the Mercury for taking up unasked this matter and getting Abetz on the record; also the readers of Tas Times for their support.
Document 1: Letter from President of Senate Paul Calvert dated 27 March 2007, “ask another Senator to table the documents.”
Document 2: Letter from Harry Evans, Clerk of the Senate dated 15th March regarding the qualifications of Senators.
Document 3: Letter from Senator Alan Ferguson, President of the Senate, dated 22 August 2008 “It would not be appropriate for me as President to bring the matter before the chamber.”
Earlier, and related articles:
Eric Abetz sends The Chaser a tweet about citizenship
Abetz, Integrity and the Law
Abetz, the Constitution and the Law
Where is the document Senator Abetz?
I intend to take Senator Abetz to the High Court (Story includes links to all earlier articles, back to 2008)
Earlier on Tasmanian Times, articles by John Hawkins:
You can also click on the Category John Hawkins, under Categories.