August 2018 – Trev's place

It’s time for a change to the law that sets penalties for MP’s and Senators who are disqualified from sitting in Parliament.

Just the 45^th Parliament (2016 to present)

Justin Keay (Labor) – Citizenship[i]
Josh Wilson (Labor) – Citizenship[ii]
Susan Lamb (Labor) – Citizenship[iii]
Rebekah Sharkie (Centre Alliance) – Citizenship[iv]
David Feeney (Labor) – Citizenship[v]
John Alexander (Liberal) – Citizenship[vi]
Barnaby Joyce (National) – Citizenship[vii]
And now the possibility of Peter Dutton (Liberal) – Constitution section 44 (v) direct or indirect pecuniary interest[viii]

This is unacceptable for Australian Politics.

Some history.

What the constitution says

The constitution provided penalties for MP’s and Senators that are disqualified. The constitution says in section 46. Penalty for sitting when disqualified

Until the Parliament otherwise provides, any person declared by this Constitution to be incapable of sitting as a senator or as a member of the House of Representatives shall, for every day on which he so sits, be liable to pay the sum of one hundred pounds to any person who sues for it in any court of competent jurisdiction.[ix]

One hundred pounds is $200.

When I read that I thought wow! I’m going to the Magistrates court tomorrow and sue all the MP’s and Senators. I’ll take my wife, my son, my daughter, my neighbours and anyone else that wants to do the same. We can all get some money.

The government creates a law

Not quite. It says “Until the Parliament otherwise provides” so I went on a google hunt and found that a law known as Common Informers (Parliamentary Disqualifications) Act 1975 and was assented and commenced on 23 Apr 1975[x].

Ironically, 1975 is known for the Australian constitutional crisis or the Dismissal. The prime minister Gough Whitlam of the Australian Labor Party was dismissed by the Governor-General Sir John Kerr. The dismissal occurred on 11 November 1975[xi]. It was a labor government that made sure to dumb down the law for future labor ministers as we have seen in this parliament.

What changed

$200/day instead of £100/day which is the same amount as it was in 1901
Maximum on one year’s sittings from the date of filing the law suit
Only one penalty order, i.e. we can’t all go to the court and do it, only one will get money
The only court is the High Court of Australia.

I’ve pasted the wording below for you to read.

Compare past to now

Lets do some comparisons between the past and now. Maybe we see why so many disqualified politicians in this last parliament so it can be fixed.

In 1901 a politician earnt $800 (£400) per year[xii]. The penalty was $200 (£100) per day[xiii]. So, 4 sitting days meant they lose the whole year salary.

In 1975 a politician earnt $20,720 per year[xiv]. The penalty was also $200/day[xv]. So, 100 sitting days meant they lose the whole year salary.

In 2017 a politician earnt $203,020 per year[xvi]. The penalty was still $200/day[xvii]. So, 1,015 sitting days and they lose a whole year salary which doesn’t happen as the most sitting days in the history of Australian politics was the house of representatives in 1904 with 122 sitting days[xviii].

What is wrong

It’s not to important for politicians to do the right thing. The penalty is a joke. In 2017 there where 56 Senate sitting days[xix]. If the Senator sat all the days, the maximum penalty would be $11,200 or 5.5% of annual base salary. The cost of lawyers to find out if they do have an issue might be $10,000. No wonder the attitude I’ll suck it and see and earn a nice wage in the mean time enough to set myself up for retirement. Don’t forget they still get the pension for the rest of their lives too.

$203,020 per year is the base for any Australian federal politician in 2017[xx]. It goes much higher when they take on additional roles. For example, a cabinet minister ($350,210) or the prime minister ($527,854)[xxi]

What should change to fix what is wrong

What I think should happen is the law is changed so for every day of sitting as a disqualified person the penalty is one quarter of their base salary for that year up to a maximum of the last 12 months of sitting.

Instead of a penalty dollar amount that doesn’t change, it’s tied to their salary so increases/decreases with it and represents the seriousness of the failure as it did when the constitution was first written.

My words for the proposed new law

Penalty for sitting when disqualified

(1) Any person who, whether before or after the commencement of this Act, has sat as a senator or as a member of the House of Representatives while he or she was a person declared by the Constitution to be incapable of so sitting shall be liable to pay to the Australian Government a sum equal to the total of:

(a) One quarter (twenty five percent) of the parliamentary allowance as determined in accordance with the Remuneration and Allowances Act 1990 is in effect on the days of sitting in respect of his or her having so sat on or before the day on which the originating process in the suit is served on him or her; and

(b) One quarter (twenty five percent) of the parliamentary allowance as determined in accordance with the Remuneration and Allowances Act 1990 and is in effect on the days of sitting for every day, subsequent to that day, on which he or she is proved have so sat.

(2) A penalty under this section shall only relate to any sitting of a person as a senator or as a member of the House of Representatives for the last 12 months that the person sat.

(3) The High Court shall refuse to make an order under this Act that would, in the opinion of the Court, cause the person against whom it was made to be penalized more than once in respect of any period or day of sitting as a senator or as a member of the House of Representatives.

4 Suits not to be brought under section 46 of the Constitution

On and after the date of commencement of this Act, a person is not liable to pay any sum under section 46 of the Constitution and no suit shall be instituted, continued, heard or determined in pursuance of that section.

5 Jurisdiction

Jurisdiction is conferred on the High Court in all proceedings under this Act and no other court has jurisdiction with regard to this act.

Government says they are on our side

The best thing the current government can do for Australia is put the penalties back in place for politicians. For me it would indicate we have a government that is putting action where their mouth is. They say they are “On your side”, lets see.

Wording of the current law

The Common Informers (Parliamentary Disqualifications) Act 1975 states[xxii]:

Penalty for sitting when disqualified

(1) Any person who, whether before or after the commencement of this Act, has sat as a senator or as a member of the House of Representatives while he or she was a person declared by the Constitution to be incapable of so sitting shall be liable to pay to any person who sues for it in the High Court a sum equal to the total of:

(a) $200 in respect of his or her having so sat on or before the day on which the originating process in the suit is served on him or her; and

(b) $200 for every day, subsequent to that day, on which he or she is proved in the suit to have so sat.

(2) A suit under this section shall not relate to any sitting of a person as a senator or as a member of the House of Representatives at a time earlier than 12 months before the day on which the suit is instituted.

(3) The High Court shall refuse to make an order in a suit under this Act that would, in the opinion of the Court, cause the person against whom it was made to be penalized more than once in respect of any period or day of sitting as a senator or as a member of the House of Representatives.

4 Suits not to be brought under section 46 of the Constitution

5 Jurisdiction

Original jurisdiction is conferred on the High Court in suits under this Act and no other court has jurisdiction in such a suit.