Current Issues Brief No 22 2002-03
Crime and Candidacy
Ian
Holland
Politics and Public Administration Group
24 March 2003
Contents
Major Issues
Introduction
A Tale of Three Criminals
Bad Citizens?
Australian Law
The History of the Law and of
Candidates
Reforming the Commonwealth Law?
'Attainted of Treason'?
'Punishable' or Punished?
Conclusion
Appendix: Disqualification for Membership of
Legislature Due to Criminal Conviction
Endnotes
In early 2003, the media reported that convicted
bomber and racist Jack van Tongeren had been released after serving
12 years jail in Western Australia and was now interested in
seeking election to the Senate. Western Australia's
Attorney-General urged the Commonwealth to tighten its restrictions
on candidates. Under Western Australian law, van Tongeren cannot
stand for State Parliament, but the Commonwealth's restrictions on
qualifications to be a member of parliament are less severe. Should
a criminal conviction render a person ineligible to become an
elected representative in a democracy? This Current Issues Brief
discusses the limits placed on the ability of people with criminal
convictions to stand for parliament.
Why do we place restrictions on the ability of
criminals to stand for political office? There might of course be
practical reasons: how could one represent one's constituents, or
vote in the parliament, if one is locked in a jail cell? But the
underlying restrictions relate to our understanding of citizenship,
and in particular of who is a 'good' citizen. The articulation of
the relationship between citizenship and elected leadership dates
back at least to Aristotle.
The decisions of voters, in cases as diverse as
Keith Wright and Terry Metherell, show that the electorate is
generally conscious of the difference between citizens breaking the
law for their own ends, and citizens breaking the law for what they
perceive to be the public good. But it is also clear that, notably
in the case of Turkish political leader Recep Erdogan, the public's
view about someone's suitability for office can change, sometimes
swiftly. Societies embed their understanding of the relationship
between law-abiding conduct and suitability for office in their
laws, often (as in the Commonwealth's case) in their constitutions.
The problems with embedding restrictions on political candidacy in
constitutions are that it:
-
- relies on the wording of the law accurately reflecting
community views
-
- entrenches in legal instruments matters about which community
opinion may change, and
-
- may be seen as censoring the range of political opinions that
citizens can express.
In Australia, some laws governing candidacy are
constitutionally entrenched, and this will present considerable
challenges, particularly at the Commonwealth level, should changes
ever be considered necessary.
Laws restricting the ability of criminals to
engage in politics exist in every Australian jurisdiction. They
vary widely in their effects. In Western Australia a person
convicted of a 'felony' is barred from holding office for the rest
of his or her life. In most jurisdictions, they are prevented from
holding office while in jail provided the sentence is of a certain
length, usually a year or more. In Queensland convictions for
certain types of offence, such as political bribery, prevent a
person from being a candidate for a fixed period of time, even if
they are not in jail. And in the Commonwealth, a person cannot take
office if convicted and under sentence for a crime 'punishable' by
a sentence of more than a year, thus linking disqualification not
only to the person's actual sentence but to the maximum sentence
for the crime.
History has shown that Australians are prepared
to elect to office people who have been convicted and spent time in
jail. Indeed the person chosen to give the address in reply to the
Governor-General's speech in the very first federal parliament was
also the only federal MP who had been transported to Australia as a
convict, a man who furthermore had been convicted of theft while in
Australia, William Groom. But with the exception of Groom, the
arrests and convictions that our politicians have experienced have
been closely related to their political careers. Many who went on
to be Labor politicians, for example, had been arrested in
connection with illegal strikes, particularly in the 1890s.
So, given Jack van Tongeren's intention to seek
election to the Senate, is Jim McGinty right to suggest that the
Commonwealth's restrictions should be tightened? To do so would
represent, if anything, the opposite trend to what is happening
elsewhere, and it may be Western Australia's laws rather than the
Commonwealth's, that might need review in this regard. However, it
could be argued that parts of section 44(ii) of the Constitution
would benefit from future reform.
Introduction
In early 2003, the media reported that convicted
bomber and racist Jack van Tongeren had been released after serving
12 years jail in Western Australia and was now interested in
seeking election to the Senate.(1) He had formed a new
organisation, the Australian Nationalist Workers' Union, and was
reported saying that 'running an election campaign is a very good
way of broadcasting far and wide your views to the Australian
people' and that 'we'll get voted in, quite a number of
us'.(2)
Western Australia's Attorney-General urged the
Commonwealth to tighten its restrictions on
candidates.(3) Under Western Australian law, van
Tongeren cannot stand for State Parliament, but the Commonwealth's
restrictions on qualifications to be a member of parliament are
less severe. Should a criminal conviction render a person
ineligible to become an elected representative in a democracy? This
Current Issues Brief discusses the limits placed on the ability of
people with criminal convictions to stand for parliament.
In November 1962, South African activist Nelson
Mandela was jailed for five years for incitement and leaving the
country without a passport. In 1964, a sentence of life
imprisonment for sabotage (an offence similar to treason) was
added. In 1990, after years of political negotiations, he was freed
from jail, and in 1994 was elected President of South
Africa.(4)
In December 1997, the Mayor of Istanbul, Recep
Tayyip Erdogan, made a public speech during which he read a poem by
an Islamic nationalist. As a result, a court subsequently found him
guilty of 'inciting hatred based on religious differences', and he
was jailed for four months in 1999.(5) Three years
later, his political party-the Justice and Development Party-won
the national elections in a massive landslide. Erdogan's past
conviction, however, meant he was banned by the country's
constitution from standing for parliament. In late 2002, the
Turkish Parliament took the steps necessary to amend the
constitution so that Erdogan could stand for election, and become
Prime Minister.(6) He was then elected to parliament in
a by-election on 10 March 2003, and immediately given the Prime
Ministerial role.(7)
In April 2002, James Traficant,
nine-times-elected congressman from Ohio, was convicted of bribery
and other corruption charges.(8) In mid-July 2002, the
US Congress used its seldom-invoked power to police its own
membership,(9) expelling Traficant from the House. Later
that month he was sentenced to eight years in prison. Prison,
however, was no barrier to seeking political office.(10)
From his prison cell, Traficant ran for the same Congressional
district that he had won as a Democrat every time since 1984, this
time as an independent. He secured 15 per cent of the
vote.(11)
From cases like those of Mandela, Erdogan and
Traficant we can see, first, that criminal conduct is widely
understood in some way to render a person unfit to be an elected
representative. But we see, second, that people's views about what
makes a person unfit can change dramatically, and quite
quickly.
Why do we impose these restrictions in law,
rather than relying on the electorate to assess the worthiness for
office of these people? One argument is that some conduct-such as a
criminal act-is simply not compatible with being a
citizen.(12) And if one is not capable of being a
citizen, one should not be able to hold political office. In fact,
Aristotle defined citizenship in terms of participation, including
the holding of public office.(13) As a society's
constitution and laws set out its basic rules, that legal framework
should include provisions that reflect this understanding of
citizenship. Provisions preventing criminals from standing-and in
some jurisdictions, from even voting-exist for this reason.
This argument is based on two premises: that
criminal conduct is inconsistent with citizenship and that good
citizenship is a precondition for (or even necessarily entails)
being a holder of public office. The first premise has a long
heritage. In The Politics, Aristotle argued that:
The task of all the citizens, however different
they may be, is the stability(14) of the association,
that is, the constitution. Therefore the virtue of the citizen must
be in relation to the constitution ...(15)
Treason, a common disqualification from seeking
political office, might seem inconsistent with seeking the safety
or stability of the state.(16) Hence acts of treason are
taken as signs of a bad citizen. But the broader issue is that
contempt for the law in a sense may represent a similar problem: it
is a sign that a person is not concerned with the stability of the
legal framework of a society. This was the concern of Roman lawyer
and statesman Cicero, who regarded 'lawlessness in individuals' to
be as corrosive of the state as was war without justification. The
'habit of disregarding legality', he argued, 'transforms our empire
from the rule of law to the rule of force'.(17) Academic
A. J. M. Milne similarly reasoned:
without the moral obligation to obey law, there
could be legal obligations properly so-called. There could only be
legal requirements backed by force ...
There are certain characteristics that a human
group must possess if it is to constitute any form of community. It
must be a group of people living together on terms they all accept
... What this is in detail is specified by the principles and rules
of the institutions and practices which give the group a definite
structure and corporate existence.(18)
It is possible therefore to argue that laws
preventing criminals from being members of parliament simply
reflect these fundamental understandings of political obligation
and of citizenship.
There are, of course, counter-arguments. In
general, we do not regard criminals as non-citizens. We do not
strip them of legal rights, we do not regard them as unable to be
redeemed, we do not outlaw or exile them, and we in general seek to
rehabilitate and re-integrate offenders into the community of free
citizens. Criminals are citizens upon whom society places certain
burdens and disciplines, rather than being temporary non-citizens.
In a recent constitutional legal case in Canada, electoral laws
that prevented persons serving sentences of more than two years
from voting were struck down as breaching citizens' rights. The
court overturned such laws because 'the right to vote is
fundamental to our democracy' and denying the right to vote does
not 'enhance civic responsibility and respect for the rule of
law'.(19)
One of the awkward questions generated by the
idea that a good citizen is one who respects the law is whether and
how we should distinguish between those who have been convicted of
breaking a law, and those who advocate contempt for the law. Are
both equally fit or unfit to stand for office? Jack van Tongeren,
for example, has broken the law. Now free, however, he openly
states that 'this is the time to shout to the whole rotten system
... damn your rotten laws, and Australia forever',(20)
and 'the present Legal System in its entirety ... which
deliberately maintains and supports such a blatantly unjust status
quo, is also bad'.(21) In judicial terms, the
distinction is not a problem: it is one of due process and of a
distinction between opinion and action. But when it comes to a
political philosophy such as that described by Milne, the
distinction is more difficult. Someone who has committed a crime
has shown similar contempt for the law as someone who holds the law
in contempt. How can we say one of these people is a good citizen,
in the sense of being fit to hold public office, while the other is
not? The difficulty in making the distinction may be one of the
reasons that most jurisdictions in fact do not bother. They do not
prevent either person from standing for office, provided they are
not actually in jail at the time.
In reality some other arguments also come into
play. One is fear of the mob: a mistrust of the hoi
polloi. During the Constitutional Convention debates on
inserting a restrictive clause in the Australian Constitution,
Barton remarked:
Unless you have provisions of this kind, it is
quite possible that somebody might take a violent affection for a
gaol-bird, and put him into parliament. We do not want that sort of
thing ...
[I]t is quite on the cards that such persons
would stand for election for the commonwealth parliament, and the
electors might choose them, not knowing who they were ... Such a
thing has happened, and it is a kind of thing which the electors
are to be protected against, because it is a state of things the
electors themselves could not provide against.(22)
The constitution, it is argued, should protect
the electorate against itself. One of the counter-arguments to this
suggestion, which would almost certainly be even truer today than a
hundred years ago, is that in fact it would be highly unlikely that
the electorate would not know of a candidate's past convictions.
Would not their rivals for the seat have an interest in this being
known? Would it not be certain, as one participant in the 1891
Constitutional Convention remarked, that the electorate could 'rely
upon the press stirring the thing up from the
bottom'?(23)
There is one other particular reason that we
might bar criminals currently serving a sentence that goes to the
nature of political representation. In asking who can be a
political representative, the key question is who is the community
prepared to accept? The problem in the Erdogan case was that
someone with community support was legally prevented from taking
office. Yet how do we know what the community wants? One way is
through the use of juries. In criminal trials they represent a
benchmark establishing community standards in relation to criminal
conduct. If a jury has found someone guilty of a crime we can say
that that person has been determined to be a 'bad citizen' to some
degree. If their guilt causes them to be imprisoned for a year or
more (the commonest measure used in Australia for determining
whether someone can stand for parliament: see the table below),
this is an indication that their 'bad citizenship' requires that
they be subject to some punishment, restriction and/or
rehabilitation before being able to function as a free citizen
again. This may certainly be used as an argument in favour of
preventing criminals currently serving sentences from seeking or
holding office. However it is also an argument against
preventing them from ever holding office, because a jury's
verdict is in relation to a specific act at a specific time, not in
relation to a person. This is not to mention the fact that
sentencing is premised at least in part on the concept of
rehabilitation.
Despite these reasons to be concerned with
law-abiding conduct, we do periodically elect those who break the
law (of whom, more later), though seldom if the crime was serious.
Sometimes our already-elected representatives themselves break the
law, occasionally in secret, more often deliberately and publicly.
Many of our politicians have been arrested in association with
protests such as those opposing Australian involvement in the
Vietnam War, and environmental protests. Federal MPs who have been
arrested while elected to parliament have included Senators:
-
- Bob Brown (Green), arrested six times,(24) the first
in 1982 during the Franklin Dam protest, immediately prior to his
entry into the Tasmanian Parliament in 1983
-
- Irina Dunn (Independent), arrested during anti-woodchipping
protests in NSW in 1989, and
-
- George Georges (Labor), arrested in 1978 and again in 1985 for
participating in protest marches (see also below).
Others have been arrested in similar
circumstances either before or after their time in parliament,
including former Independent and Western Australian Greens Senator
Jo Vallentine, arrested in July 1998 during anti-uranium mining
protests, and subsequently jailed in 2000 for failing to pay a fine
for trespassing.
Clearly most voters do not regard these people
as criminals to be kept well away from political power. Why do we
make a distinction between different types of law breaking? Why are
some law breakers allowed to stand for office and others not? And
why do we elect some law breakers and reject others? The answer
lies partly in principle, and partly in practice. In principle, we
can make a distinction between weak and strong obligation to the
state. DeLue argues:
A person with a strong obligation will, when he
disagrees with the state's policies or laws, generally uphold them
anyway. Yet it is possible that one will decide to protest the laws
one disagrees with. If one does, one chooses civil forms of
protest. Here, one protests by showing respect for the state's
right to make and enforce laws. ... one may decide to violate a
particular law one disagrees with, but in doing so, one's intent is
to 'educate' the general public and the policymakers so they will
change the laws or policies one dislikes ... [I]f one's actions
were to encourage general lawlessness, one would stop using
disobedience as a protest form. By contrast, a person with a weak
obligation chooses noncivil forms of protest.(25)
In principle one can thus tell the difference
between different types of law breaking: between those actions
undertaken within a respect for the constitutional order, and those
that hold it in contempt. There can also be drawn a distinction
between law breaking that serves self-interest and that which does
not, or between law breakers who seek to evade punishment (thus
seeking to deny the constitutional order) and those who do not
(because they believe in the broader rule of law in some
sense).
In practice, citizens do seem to make these
distinctions between types of law breaking. This is arguably
evident in the case of the re-election attempt in 1993 of Keith
Wright.
Keith Wright (ALP) was a sitting federal MP who
in November 1992 was committed to trial on charges including
indecent dealing.(26) Dumped by his party, he ran for
his seat in the 1993 election as an independent. Although he was
the sitting member, and continued to proclaim his innocence, he
received 5.9 per cent of the vote, just one-tenth of the vote at
the previous election (he was convicted and jailed seven months
later).
Similarly, while many voters supported
Traficant's bid to be returned to Congress despite his conviction,
he did not come close to re-election. This was despite his immense
personal popularity and high profile over the years.
Voters do also sometimes disregard
convictions-even when the politician's own party does not. Terry
Metherell (Liberal) was elected to NSW Parliament from the seat of
Davidson in 1981. In July 1990 he resigned as Minister for
Education and Youth Affairs when it became known he was to be
prosecuted for tax offences. In September 1990 he pleaded guilty to
tax charges, and was ordered to pay fines, back taxes and court
costs totalling $11 847.(27) Blaming the neglect of
his tax affairs on his heavy workload, he once again contested his
seat for his party and increased his margin by 4.1 percentage
points, even though his party lost 1.5 percentage points on average
state-wide.(28) Despite this, he was overlooked for the
new ministry, and, frustrated, resigned from his party six months
later to sit as an independent.
Perhaps, given some community antipathy to tax
laws, the electorate sympathised with Dr Metherell's tardiness in
keeping his tax affairs in order. The point is that voters
distinguish between candidates' stance toward the state
and the constitutional order and the candidates' record in abiding
(or failing to abide) by any given law.
It then becomes clear that the problems with
embedding restrictions on political candidacy in constitutions are
that it:
-
- relies on the wording of the law accurately reflecting
community views
-
- may entrench in legal instruments matters about which community
opinion quickly changes, and
-
- may be seen as censoring the range of political opinions that
citizens can express.
These problems are very evident in the Turkish
case, where Erdogan's conviction prevented his election, but
clearly did not reflect at all the community's views about his
regard for his country's constitution and people. In Australia,
some laws governing candidacy are constitutionally entrenched-even
more so than those of Turkey-and this will present considerable
challenges, particularly at the Commonwealth level, should changes
ever be considered necessary.
Laws restricting the ability of criminals to
engage in politics exist in every Australian jurisdiction. The laws
vary considerably and are summarised in the table below. A more
comprehensive description of the arrangements in each jurisdiction
is contained in the appendix. Around Australia some of the
restrictions on political candidacy are embedded in constitutions,
while others are embedded in legislation such as electoral laws.
Most states, however, are able to change their constitutions more
readily than in the federal case, and so the Commonwealth's
restrictions are arguably the most difficult to modify.
Table: Summary of Australian laws on
criminals as candidates
Jurisdiction
|
Ban applies to persons
|
Period of ban
|
Commonwealth
|
-
- Convicted of a crime punishable by a year or more in prison
- Attainted of treason
|
-
- Banned while serving or awaiting sentence
- Banned for life
|
NSW
|
Convicted and sentenced to a year or more in
prison
|
Banned while serving sentence
|
Victoria
|
-
- Convicted of treason or treachery and not pardoned; or
- Convicted and serving a sentence of five years or more
|
- Banned for life
- Banned for life (some exceptions)
|
Queensland
|
- In prison
- Convicted in last two years and sentenced to more than a year
in prison
- Convicted in last seven years of a political bribery
charge
- Convicted in last ten years of certain electoral offences
- Convicted of treason etc and not pardoned.
|
(a) - (d) Banned for the fixed periods listed
(e) Banned for life unless pardoned
|
SA
|
- Convicted in last two years of a bribery charge
- No other restriction on candidacy, but a sitting
member convicted of any indictable offence or treason is
disqualified
|
- Banned for the fixed period listed
- Legal implication unclear: appears there is nothing to stop the
person immediately re-nominating(29)
|
WA
|
Convicted of treason or felony
|
Banned for life
|
Tasmania
|
In prison
|
Banned while serving sentence
|
NT
|
Convicted and sentenced to a year or more in
prison
|
Banned while serving sentence
|
ACT
|
- Convicted of a crime punishable by five years or more in
prison
- Convicted in last two years of a political bribery charge
|
- Banned while serving sentence
- Banned for the fixed period listed
|
For greater detail on the laws summarised here, see the
appendix.at pp. 15-17.
|
From the table it can be seen that Jack van
Tongeren cannot stand in WA because he has been convicted of a
felony. Even the meaning of that term has never been particularly
transparent. When the shape of the Commonwealth constitution was
being debated in the 1890s, one reason this terminology was not
used was that there was not agreement on the meaning of 'felony'.
Mr Glynn remarked at that time:
As Sir Samuel Griffith has pointed out, the
meaning of the word 'felony' is changing considerably. In some
colonies felony is comparatively a light offence; in other colonies
it is a heavy offence. In New Zealand felony is practically unknown
to the federal law.(30)
The comments by Griffith to which Glynn referred
were that:
The word 'felony' is ... an inappropriate one.
Apart from the fact that the word no longer bears any definite
descriptive meaning, the use of it has the effect of making the
disqualification in question dependent upon state
law.(31)
Accepting these arguments, the Commonwealth
declined to use a wording that a century later is still on the
books in Western Australia. Griffith had also been concerned that,
were such wording to be used, the disqualification would then
depend on whether the crime of which a candidate or member was
convicted happened to be considered a felony in that particular
state. Ironically, as we shall see, the wording that was eventually
chosen has created this same problem, just in a different form.
Federally, section 44 of the Constitution only
prevents a person serving (or awaiting) a sentence for a crime
punishable by a year or more in prison from being a candidate for
federal parliament(32) (unless they have been attainted
of treason: see discussion below).(33) Section 44
currently states:
Any person who ... (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
... shall be incapable of being chosen or of sitting as a senator
or a member of the House of Representatives.
Van Tongeren is thus free to stand for federal
office. But, again referring to the table, it is clear he would
also be free to stand in every other jurisdiction except Western
Australia and Victoria.
The Constitutional Convention of 1891 defeated a
proposal that the Commonwealth's law be cast in similar terms to
that of Western Australia. As we saw from the debates already
mentioned, the Convention concluded in favour of a limited
disqualification that applied only to people either under, or
awaiting sentence, for crimes punishable by a year or more of
prison.(34)
This has meant that people with a conviction in
their past have been free to stand for parliament. Perhaps
surprisingly, over the years quite a few have successfully done so.
Past MPs have been convicted, some spending time in prison, before
entering (or being re-elected to) parliament. They include:
-
- William (Bill) Hamilton (ALP), who served a three year sentence
for criminal conspiracy as a result of his role in the shearers'
strikes of 1891, when he had actually tried to prevent illegal
actions by workers. Just a few years later he was elected to the
Queensland Legislative Assembly, where he sat from 1899 to 1915. He
then moved to become president of the Legislative Council until his
death in 1920.(35)
-
- William Groom (Protectionist) was the only member of the
federal Parliament to have been a transported convict. He was
transported to Australia in 1849 at the age of 13. Once here he was
convicted of theft in 1855 and sentenced to three years in prison.
He was pardoned after about a year and went on to be a newspaper
proprietor, member of the Queensland Legislative Assembly 1862-1901
and Speaker of the Queensland Assembly from 1883 to 1888. He was a
founding member of the federal Parliament, chosen to move the
address in reply in the opening session.(36)
-
- Arthur Rae (ALP/Lang Labor) was a union organiser who was fined
for getting shearers to strike in support of maritime workers in
1890. Refusing to pay the fine, he was sentenced to 'sixty-one
consecutive fortnights' in jail.(37) He was released
after a month in response to widespread protest.(38) Rae
went on to be the first Labor member of the NSW Legislative
Assembly (1891-94) and, after failing to win a House of
Representatives seat in 1903 and 1907, was elected as a Senator for
two periods:
1910-14 and 1929-35.
-
- George Yates (ALP) was the federal member for Adelaide in the
periods 1914-19 and 1922-31. In 1917, Yates enlisted in the defence
forces. During demobilisation in 1919, he was amongst troops
waiting in quarantine on ships off Sydney. Yates:
had acted as their spokesman in threatening to
take possession of the boats and go ashore. He was found guilty of
conduct to the prejudice of good order and military discipline, and
of having endeavoured to persuade troops to join in a
mutiny.(39)
He was sentenced to sixty days detention. Though
his political career was damaged by the incident, losing his seat
in the election of 1919, he was returned to parliament in 1922, and
also received compensation as a result of a parliamentary committee
inquiry into other allegations made about his military service
record.(40)
-
- Frederick Vosper (Independent) wrote and published material
during the shearers' strike that led him to be twice tried and
acquitted of seditious libel in 1891. In 1892, however, he was
convicted of inciting a riot, and sentenced to three months hard
labour. In 1897 he was elected to the WA Legislative Assembly. In
1901 he announced his candidacy for the Senate, but died before the
election was held.(41)
-
- E. J. Holloway (ALP/Federal Labor Party) was a unionist and
vigorous activist against the anti-Labor Bruce government of
1923-29. He was prosecuted and fined for encouraging a strike in
1929. He was notable not for that incident so much as for the fact
that, later that very same year, he became the only candidate ever
to oust a serving Prime Minister from his seat in an
election.(42)
-
- Tom Uren (ALP) had been a member of the House of
Representatives for over a decade when in 1970 he participated in a
Vietnam War moratorium rally in Sydney. After claiming he had been
roughly pushed by a police officer, Uren sought to press a charge
of assault against the police officer. When the case was dismissed,
costs were awarded against Uren. He refused to pay, and in early
1971 was taken, with some reluctance on the part of authorities, to
Long Bay jail, where he served a couple of days before someone else
paid his fine.(43)
-
- George Georges (ALP) was jailed twice during his political
career for failing to pay fines incurred as a result of
participating in protests. Elected from Queensland to the Senate in
1967, in December 1978 he was jailed for fourteen days, but served
only one, apparently because someone paid the fine that he would
not.(44) He was convicted and fined on similar charges
in 1979.(45) In 1985 he was jailed for ten days, again
for failing to pay a fine, and this time served just three
hours.(46)
-
- (William) Robert Wood (Nuclear Disarmament Party) was elected
to the Senate in 1987, though he was subsequently disqualified
under section 44(i) of the Constitution because he was not an
Australian citizen at the time of standing.(47) He had
in 1972 spent a month in jail because of his objections to National
Service,(48) and in 1987, not long before being elected,
was arrested and fined for paddling a kayak in front of a US
warship in Sydney harbour, as part of a peace
protest.(49)
Most of these examples highlight how there are
links between many MPs' convictions and their political careers.
The reasons some people fall foul of the law are often the same
reasons they seek political office: a preparedness to pursue their
beliefs, despite the fact that they may not be the views of the
government of the day. Ironically Jack van Tongeren in many
respects fits this description.
Section 44 of the Commonwealth's constitution
also disqualifies parliamentarians who become the subject of the
criminal conviction provisions. Although there have been members of
parliament who have gone on to be convicted of criminal offences,
none has been removed from office directly by the application of
section 44(ii). They have generally resigned or been defeated in
elections prior to a conviction that would have made them
ineligible.(50)
Western Australian Attorney-General Jim McGinty,
it will be recalled, had responded to Jack van Tongeren's political
statements by saying that the Commonwealth's laws ought to be
tightened to prevent 'serious criminals', including van Tongeren,
from being a candidate.(51) Certainly it is reasonable
to consider these issues but it may be Western Australia's law that
is in need of review. It remains one of the oldest such provisions
in the country. Similar provisions in Queensland have been
reformed. Only Victoria and Western Australia impose life bans, and
in Victoria they are restricted to more serious cases than in
Western Australia (see the appendix). Even the New South Wales
provisions that date from a similar era and have other problems
with anachronistic language (making reference to 'infamous crimes')
apply only to disqualification of sitting members and still allow
later re-nomination. Whatever the feelings McGinty or anyone else
might have toward neo-Nazis in general, or Jack van Tongeren in
particular, the question must remain: why should the electorate be
prevented from ever considering the fitness of this person to be
their representative?
But while McGinty's suggestion might be treated
with caution, it does not mean that section 44(ii) of the
Constitution would not benefit from reform. Issues concerning
Commonwealth law in this area (particularly section 44 of the
Constitution) have been canvassed elsewhere.(52) Section
44 is known for its controversial and cumbersome wording. Four
times in the last twenty years candidates who have won elections
have fallen foul of this section of the Constitution (Nuclear
Disarmament Party representative Robert Wood, Independent Phil
Cleary, One Nation Senate candidate Heather Hill and Liberal Jackie
Kelly), though none specifically as a result of the restrictions on
people with criminal convictions. Two particular aspects of section
44(ii) are discussed here: the use of the phrase 'attainted of
treason' (and the lack of reference to the possibility of pardon),
and the reference to crimes 'punishable' by certain terms of
imprisonment.
'Attainted of
Treason'?
Being 'attainted of treason' occupies a special
place amongst the disqualifications for office: it is the only
conduct that permanently prevents a person from standing for the
Commonwealth parliament. As a Senate committee has noted, the
meaning of 'attainted' is obscure, and the usage
archaic.(53) It used to mean the person in question was
subject to 'that extinction of civil rights and capacities which
formerly took place under English law when judgement of death or
outlawry was recorded against a person convicted of treason or
felony'.(54) In current usage it might be taken to mean
someone implicated in treason, though it would probably be taken to
mean 'convicted',(55) were ever the question to come
before a court, given that the Criminal Code contains an offence of
treason.
The entitlement to vote provision in the Commonwealth Electoral
Act 1918 (Electoral Act) was clarified in 1983 to state that a
person cannot enrol if he or she 'has been convicted of treason or
treachery and has not been pardoned',(56) but the
Constitution remains unaltered.
Aside from the anachronistic language of section
44, there are also policy issues that need to be addressed. The
current wording of section 44 of the Constitution does not
recognise the possibility of being pardoned for treason. This
contrasts with the regime in most States such as Queensland, where
the law prevents a person who 'has been convicted, and not
pardoned, of treason, sedition or sabotage...' from being
elected (emphasis added).(57)
Had two of the overseas cases outlined earlier
taken place in Australia, Mr Erdogan would be capable of seeking
office, but Mr Mandela probably would not, because of his
conviction for sabotage.
Should treason be singled out as so different
from any other offence that it should permanently disqualify a
person from seeking office? Why should we treat other offenders as
legitimate candidates once they have served their time, while those
released after being imprisoned for treason find a penalty hanging
permanently around their necks? Sir George Grey at the
Constitutional Convention in 1891 spoke passionately against such a
lifetime's burden. Speaking of both those attainted of treason and
those convicted of a crime, he argued:
It is proposed, not only to give him the
punishment the law has allotted to his offence, but when he has
undergone that punishment, you send him forth with a brand upon him
which he can never wipe out. ... He is literally sent out a pariah
among his fellow-countrymen without any hope of being restored to
his former social status. By no good conduct could he relieve
himself of the result of the errors of his past
life.(58)
Grey was concerned that stripping a person of
any hope of redemption in this regard could actually harm society,
because of the dangers presented by citizens who believe they have
nothing to gain in the eyes of their community. It may be time to
do as Queensland, for example, has already done, and as a minimum
amend section 44(ii) to at least recognise the possibility that
people may be pardoned of treason.
This issue may be becoming more relevant, as the
scope of the crime of treason has recently been
broadened.(59) It has been extended to include:
-
- assisting an organisation engaged in armed hostilities against
the defence forces
-
- causing death or harm to the Governor-General or Prime
Minister, and
-
- imprisoning or restraining the Governor-General or Prime
Minister.(60)
It hitherto referred only to the Sovereign, the
Sovereign's heir and consort.(61)
One should also not overlook the political
nature of laws such as those governing treason, or the related
crimes of sedition and sabotage. Australian communist Lawrence
Sharkey was jailed for sedition during the Cold War
era.(62) Nelson Mandela was charged with treason and
later jailed for sabotage. Their actions may well seem criminal to
many at a certain point in time, but their actions should be
characterised as, most of all, political actions. Their activities
were first and foremost political activities. In Australia, the
laws on treason have become increasingly restrictive. Despite the
fact that they are now quite broad in scope, and despite the
fundamentally political nature of the activities treated as
offences, the Constitution still bars those convicted of treason
from ever being candidates for office, while the Electoral Act
prevents them from ever again being allowed to vote.(63)
The law is signalling that these are the worst sorts of citizens,
yet historical examples suggest this is far from being so. The
inherently political nature of such crimes should make us more,
rather than less, cautious about entrenching in law the lasting
exclusion of such people from democratic participation.
'Punishable' or
Punished?
The Commonwealth Constitution refers to people
convicted of crimes 'punishable' by more than a year in prison.
Other jurisdictions base their bans on the sentence a person
actually receives, whereas the Commonwealth's regime is based on
the maximum possible sentence that can be handed out. This could
lead to some undesirable consequences. Any conviction of theft
under the Commonwealth's Criminal Code, however minor, would lead
to disqualification.(64) So would any conviction of
obstruction of a Commonwealth public official, even if the
defendant did not know the person was a Commonwealth
official.(65) This could include, for example,
obstructing a federal police officer during a demonstration. The
fact that a person convicted of a relatively minor offence that
took place during, for example, a political demonstration, could
then be prevented from seeking office even though they were not in
jail, would seem to many a disproportionate response.
The other reason this clause may benefit from
reform is that, as the clause currently stands, the constitution is
held hostage to the vagaries of changes to the criminal laws, not
only of the Commonwealth, but of all the states and territories.
So-called 'law and order' campaigns and 'truth in sentencing'
initiatives sometimes lead to increases in the maximum sentences
that may be handed out for certain offences. Because the
Commonwealth constitution links disqualification to the
maximum sentence, rather than that actually administered,
such changes bring citizens within the scope of the
disqualification provisions who were previously outside them. The
Commonwealth thus effectively has little control over which
offences can prevent candidacy and which cannot. In fact Senator
George Georges came very close to losing his seat for this reason.
On 22 October 1977 he was arrested during a protest rally in
Brisbane and charged with, amongst other things, resisting a police
officer in the execution of his duty.(66) The offence of
resisting a public officer carried a maximum sentence of two years'
imprisonment.(67) Georges fought the charges and was
eventually acquitted in May 1978. Had he been convicted, however,
he would have lost his seat in the Senate.(68)
As well as meaning the Commonwealth effectively
has ceded control of this aspect of the disqualification
provisions, one consequence can be great inconsistency in who may
or may not be a candidate. John Kalokerinos, in a 2000 Senate
Occasional Lecture, illustrated this well:
possession of a small amount of cannabis in the
ACT is punishable merely by a $100 fine, whilst in NSW the same
offence is punishable by two years imprisonment. A person could
therefore be disqualified for a conviction in Queanbeyan, but would
not be disqualified for conviction for the same activity across the
border in Canberra.(69)
Western Australia and Victoria are subject to a
particularly severe form of such inconsistency. This is because
they impose a lifetime ban on those convicted of serious offences
in Victoria or 'any other part of the British Commonwealth of
Nations' (in Victoria), or of a felony 'in any part of Her
Majesty's dominions' (in the case of Western Australia). This means
that, if someone is convicted of a crime punishable by a sentence
of five years or more in say, Zimbabwe, they could never stand for
parliament in Victoria. A similar situation would appear to apply
in Western Australia. It also means that a person convicted of
murder or serious corruption in a non-Commonwealth country would be
free to stand for office in those states (and in the rest of
Australia). The remaining states and the Commonwealth limit their
restrictions to crimes committed in an Australian jurisdiction.
This inequity of treatment is only a serious problem if the
jurisdiction tries to impose a ban on holding office after a person
has served their sentence. In this regard it is perhaps not the
Commonwealth's law that might need reform, but that of some
states.
One of the other effects of the wording of
section 44(ii) is that it does not envisage the possibility of
appeals against convictions. As it currently stands, a person is
disqualified from being a candidate even if they are appealing
against a conviction of a crime that falls within the definition of
section 44(ii). Under section 45 of the Constitution, it appears
that the seat of a Member or Senator is declared vacant if they are
convicted (again of a crime within the terms of 44(ii)), regardless
of whether they have lodged an appeal against conviction. Is an
appropriate constraint to be placed on those seeking or holding
political office?
We allow former criminals to stand for office
because we do not believe that 'once a convict, always a convict'.
We allow them to stand because we believe in rehabilitation and
trust that citizens are capable of judging a person's fitness for
public office. Sometimes they appear to do that on even the
suspicion of criminal activity, the best-known example being that
of Thomas Ley (Nationalist, Barton). During his 1925 campaign for
the federal seat of Barton, his opponent Fred McDonald alleged Ley
had tried to bribe him (McDonald) to withdraw. Ley won the
election, but when McDonald sought to have the election voided by
the Court of Disputed Returns, he (McDonald) disappeared. Despite
his electoral success, Ley was increasingly criticised over
business dealings and other matters. One of his critics, Hyman
Goldstein, was found dead below cliffs in Sydney just two months
before the 1928 elections. Ley may or may not have silenced these
critics (he was never charged), but the public nonetheless was not
prepared to re-elect him. He was defeated in the 1928 election
(though the swing against him was arguably no worse than that
experienced by many of his fellow Nationalist Party
members).(70) Nearly twenty years later and on the other
side of the world, he was convicted for the murder of a
barman.(71)
But while people against whom allegations are
made, such as Ley, are free to stand for election, the Australian
Constitution currently would not cope with cases such as that of
Mandela. Furthermore, people receiving light sentences for minor
offences are vulnerable to disqualification because of the
reference in section 44 to the sentence for which an offence may be
'punishable' rather than to the actual sentence handed down.
These limitations are symptoms of the well-known
problems of section 44,(72) the wording of which has
caused regular problems. It may be that section 44 should be
reformed, but not, as McGinty hoped, to exclude former convicts
like van Tongeren, but to give the Commonwealth full control of its
disqualification provisions and to recognise the possibility of
pardon in cases of treason.
Jurisdiction
|
Disqualification for
Membership
|
May Nominate when Completed Sentence
|
Commonwealth
|
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 [Commonwealth
Constitution section 44. Section 45 will cause a sitting
member's seat to be vacated if they become subject to section
44].
Cannot be chosen or sit in either House of
Parliament for a period of two years from the date of a conviction
or finding of an offence against:
-
- section 326 or 327 of the Commonwealth Electoral
Act 1918 or section 28 of the Crimes Act 1914;
or
-
- an offence against section 11.1 of the Criminal Code
that relates to an offence referred to in the point above; or
-
- is found by the Court of Disputed Returns to have committed or
attempted to commit bribery or undue influence, when a
candidate.
[Commonwealth Electoral Act 1918
section 386]
|
Yes, except in the case of those attainted of treason
|
New South Wales
|
Is convicted of an infamous crime, or of an
offence punishable by imprisonment for life or for five years or
more (if has not lodged an appeal, conviction has not been quashed,
appeal has been withdrawn or has lapsed). [disqualification against
sitting member only]
[Constitution Act 1902 section 13A]
Has been convicted and sentenced to a term of
imprisonment of one year or longer and is in prison pursuant to
such sentence.
[Parliamentary Electorates and Elections Act
1912 sections 39, 79, 81B]
|
Yes
|
Victoria
|
Has been convicted of treason under the law of
Victoria or treason or treachery under the law of the Commonwealth
or a State or Territory of the Commonwealth and has not been
pardoned.
Is serving a sentence of 5 years imprisonment or
more for an offence against the law of Victoria, the Commonwealth
or another State or a Territory of the Commonwealth.
[Constitution Act 1975 section 48 and
Electoral Act 2002 sections 69, 70]
Has been convicted or found guilty of an
indictable offence which is punishable upon first conviction by
imprisonment for life or for a term of five years or more, under
the law of Victoria or under the law of any other part of the
British Commonwealth of Nations.
[Constitution Act 1975 section
44(3)]
|
Yes in the case of those currently serving a sentence of 5 years
or more, provided that the offence of which they were
convicted is not punishable upon first conviction by
imprisonment for life or for a term of five years or more.
No in all other cases.
|
Queensland
|
-
- Subject to a term of imprisonment or detention, periodic or
otherwise;
-
- has been convicted within two years of the day of nomination of
an offence against the law of Queensland, another State or the
Commonwealth and sentenced to more than one year's
imprisonment;
-
- has been convicted within seven years before the day of
nomination of an offence against the Criminal Code section
59 (member of Parliament taking bribes) or section 60 (bribery of
member of Parliament);
-
- has been convicted within ten years of the day of nomination of
a disqualifying electoral offence.
-
- has been convicted, and not pardoned, of treason, sedition or
sabotage under the law of Queensland, another State or the
Commonwealth
[Parliament of Queensland Act 2001
section 64 (2)(4)(5)(6)]
|
Yes (except in case of unpardoned treason, sedition or
sabotage)
|
South Australia
|
Attainted of treason or is convicted of an
indictable offence [disqualification against sitting member
only]
[Constitution Act 1934 section 17 and
31]
Convicted of bribery or undue influence or an
attempt to commit bribery or undue influence: disqualified for at
least two years from the date of conviction.
[Electoral Act 1985 section 133]
|
Yes, although the case of sitting members convicted of an
indictable offence is ambiguous due to section 46 of the
Constitution Act 1934
|
Western Australia
|
Has in any part of Her Majesty's dominions been
convicted of treason or felony.
[Constitution Acts Amendment Act 1899
section 32]
|
No
|
Tasmania
|
No person who is in prison under any
conviction.
[Constitution Act 1934
section14(2)]
|
Yes
|
Northern Territory
|
Has been convicted and is under sentence of
imprisonment for one year or longer for an offence against the law
of the Commonwealth or of a State or Territory
[Northern Territory (Self-Government) Act
1978 (Cth) section 21]
|
Yes
|
Australian Capital Territory
|
Not qualified to take a seat as a member if ...
has been convicted and is under sentence for an offence punishable
under the law of the Commonwealth or of a State or Territory by
imprisonment for 5 years or longer.
[Australian Capital Territory
(Self-Government) Act 1988 (Cth) section 67]
Has been convicted of an offence relating to
bribery or intimidation under the Electoral Act
1992 or the Commonwealth Electoral Act 1918
within the two years preceding the conviction or finding.
[Electoral Act 1992 section 103 (4)(5)]
A person is only eligible to nominate if
entitled to be an elector. A person is not entitled to be an
elector if serving a sentence of five years or longer for an
offence against the law of the Commonwealth or of a State or
Territory; or has been convicted of treason or treachery and has
not been pardoned (relates to Commonwealth roll) [Electoral Act
1992 sections 72, 103, Commonwealth Electoral Act
1918, section 93]
|
Yes
|
-
- Mark Russell, 'Nazi to run for Senate', Herald Sun, 31
January 2003.
- 'Neo-Nazi to stand for Australian Parliament', Agence
France-Presse, 29 January 2003.
- Mark Russell, op. cit.
- Anthony Sampson, Mandela: The Authorised Biography,
HarperCollins, London, 1999.
- See Amnesty International, Annual Report 2000, on
Turkey.
- 'Turks clear way for leader', The Weekend Australian,
28 December 2002.
- 'Turkey poll win paves way for US', The Australian, 11
March 2003.
- The Green Papers: Ohio 2002 Midterm Election, http://www.thegreenpapers.com/G02/OH.phtml#H2000
.
- 'US Congressman jailed', BBC News
(world edition) on 30 July 2002; 'Traficant expelled after final
jabs in House',
USA Today, 25 July 2002. Apart from incidents during the Civil
War, the only House of Representatives member to be expelled prior
to Traficant was Representative Michael Myers. Myers was ousted in
1980 after being convicted of accepting bribes. Only one Senator
has been expelled other than during the Civil War, and that was in
1797, when William Blount was expelled for inciting Indians against
government officials. Expulsion requires a two-thirds majority vote
of the chamber. Encyclopedia of the American Legislative
System, Charles Scribner's Sons, New York, 1994, vol. 1, pp.
548-53.
- The US Constitution sets the qualifications for candidacy and
contains no barrier based on imprisonment. American States can set
such restrictions, but not for federal elections. Incidentally,
because voter qualifications are not set by the US Constitution,
some states have disqualified prisoners from voting: indeed, as Al
Gore found to his cost in Florida during the presidential election,
some states never allow convicted criminals to vote again. This
still, however, would not prevent them from being candidates. See
'Though
Jailed, Could Traficant Run?', US Gov Info / Resources; Jack
Maskell, Congressional Candidacy, Incarceration, and the
Constitution's Inhabitancy Qualifications, Congressional
Research Service, 2002; Sasha Abramsky, 'Ex-Felon Laws
Cost Florida Residents Vote', AlterNet.org, 9 November 2000.
- CNN election website, http://edition.cnn.com/ELECTION/2002/pages/states/OH/index.html.
- For a detailed discussion of these issues, in relation to
voting rights rather than candidacy, see Graeme Orr, 'Ballotless
and Behind Bars: The Denial of the Franchise to Prisoners',
Federal Law Review, vol. 26, no. 1, pp. 55-82.
- Aristotle, The Politics, Book III, iv. See Philip
Manville, The Origins of Citizenship in Ancient Athens,
Princeton University Press, Princeton, 1990, pp. 38-54.
- In this context, the word stability-sōtēria-does not
appear to mean 'unchanging', so much as 'safe'.
- Aristotle, The Politics, Book III, iv, 1276b 20.
- But see the discussion of this in the later section 'Attainted
of Treason?'
- Cicero, On the State, III, 34-7, 41.
- J. M. Milne, 'Political Obligation and the Public Interest', in
Paul Harris (ed.), On Political Obligation, Routledge,
London, 1990, pp. 3, 5.
- Sauvé v. Canada, 2002 SCC 68 at 9, 21.
- Jack van Tongeren, 'The Extremist: The Ultimate Hero',
Australian Nationalist Movement website: http://www.whiteprideco.com/ex3.htm
.
- Jack van Tongeren, 'The Bigger Picture', Australian Nationalist
Movement website: http://www.whiteprideco.com/biggerpicture.htm
.
- Constitutional Convention Debates, 21 September 1897,
pp. 1012-13.
- Constitutional Convention Debates, 3 April 1891, p.
659.
- Juliette Hughes, 'The Green Battler', Eureka Street,
vol. 11, no. 3, 2001, pp. 22-6.
- Steven DeLue, Political Obligation in a Liberal State,
State University of New York Press, New York, 1989, p. x.
- James Warden, 'A Bunyip Democracy: The Parliament and
Australian Political Identity', Political Studies Fellow
Monograph No. 2, Department of the Parliamentary Library,
Canberra, 1995, p. 8.
- 'Metherell fined, blames pressure', Sydney Morning
Herald, 11 September 1990.
- For election results see Gerard Newman, 'New South Wales
Elections 1988', Background Paper, Department of the
Parliamentary Library, Canberra, 1988-89; Gerard Newman, 'New South
Wales Elections 1991', Background Paper no. 10,
Department of the Parliamentary Library, Canberra, 1992.
- This is despite the contrary claim made by Gerard Carney,
Members of Parliament: Law and Ethics, Prospect
Publishing, St. Leonards, 2000, p. 46. He suggests that in South
Australia 'candidates appear to be subject to a lifetime
disqualification if convicted of an indictable offence before being
elected', in support of which he cites sections 17, 31 and 46 of
the SA Constitution Act. However, not only is it far from clear
that these sections cause a lifetime disqualification, if they were
to be interpreted in this way, they would seem only to apply to a
person who is convicted while already holding a seat.
- Constitutional Convention Debates, 21 September 1897,
p. 1012.
- Cited in the Constitutional Convention Debates, 21
September 1897, p. 1014.
- The language is ambiguous as to its impact on those 'under
sentence' but not actually in detention, such as those serving
community service orders, or paying fines in instalments. Orr, op.
cit., p. 58.
- Under section
44(ii). See also Nile v Wood (1987) 167 CLR
133.
- John Quick and Robert Garran, The Annotated Constitution of
the Australian Commonwealth, Angus & Robertson, Sydney,
1901, p. 490.
- Australian Dictionary of Biography (ADB),
vol. 9, pp. 176-7; Ross McMullin, The Light on the Hill,
Oxford University Press, Melbourne, 1991, pp. 3, 98; Queensland
Parliament,
Alphabetical Register of Members of the Legislative Assembly
1860-2000 and of the Legislative Council 1860-1922.
- ADB, vol. 4, p. 304; Gavin Souter, Acts of
Parliament, Melbourne University Press, Melbourne, 1988,
p. 52.
- ADB, vol. 11, p. 324.
- McMullin, op cit., p. 13.
- Gavin Souter, op. cit., 1988, p. 162.
- ibid.
- ADB, vol. 12, p. 334.
- McMullin, op. cit., pp. 150-1.
- Tom Uren, Straight Left, Random House, Sydney, 1994,
pp. 192-5.
- 'Influence forced release: Georges', Canberra Times,
29 December 1978.
- 'Marches leader in doubt', The Age, 28 July 1979.
- Senate Debates, 11 November 1986, p. 1940.
- His election was declared invalid by the High Court on 12 May
1988. Hugo Kelly, 'Wood gets a ticket home after losing Senate
seat', The Age, 13 May 1988.
- Keith Scott, 'Robert Wood: a man committed to peace',
Canberra Times, 12 November 1987.
- 'Challenge looming for N-party senator', The Age, 25
August 1987; Alan Gill, 'Senator-elect has a date in court',
Sydney Morning Herald, 21 August 1987. In fact Mr Wood
attended a court hearing in connection with his appeal against the
fine on the very day he was declared the winner of the NSW Senate
seat.
- The case of Keith Wright, mentioned earlier, is an example, as
would be that of Michael Cobb (National Party, Parkes), who retired
at the 1998 election after being charged in 1997 with fraud and
imposing on the Commonwealth. He was convicted after the election,
and received a fine and suspended two-year sentence.
- Mark Russell, op. cit.
- See Bob Bennett, 'Candidates,
Members and the Constitution', Research Paper no. 18,
Department of the Parliamentary Library, Canberra, 2001-02, Senate
Standing Committee on Constitutional and Legal Affairs, The
Constitutional Qualifications of members of Parliament, PP No.
131 / 1981, Ch. 3.
- Senate Standing Committee, op. cit., p. 17.
- ibid., p. 16.
- For a brief discussion, see Gerard Carney, op. cit., p. 39.
- Commonwealth Electoral Legislation Amendment Act 1983,
section
23.
- Parliament of Queensland Act 2001, section 64 (2)(e).
- Constitutional Convention Debates, 3 April 1891, p.
656.
- See Michael Head, 'Counter-terrorism Laws Threaten Fundamental
Democratic Rights', Alternative Law Journal, vol. 27, no.
3, 2002, pp. 121-26; Nathan Hancock, 'Terrorism and the Law in
Australia: Legislation, Commentary and Constraints', Research
Paper no. 12, Department of the Parliamentary Library,
Canberra, 2001-02.
- Criminal Code Act 1995, section 80.1. See Nathan
Hancock, Security
Legislation Amendment (Terrorism) Bill 2002 [No. 2], Bills
Digest no. 126, Department of the Parliamentary Library,
2001-02, pp. 18-19.
- In what was the Crimes Act 1914, section 24.
- Peter Edwards, 'Public Enemy Number One-Fifty Years Later',
Wartime, vol. 8, pp. 50-2.
- Commonwealth Electoral Act 1918, section
93.
- Criminal Code Act 1995, section
131.1.
- Criminal Code Act 1995, section
149.1.
- 'Acquittal for senator over march in Qld.', The
Advertiser, 11 May 1978.
- Criminal Code Act 1899 (Qld), section 199.
- On a separate occasion, Georges was convicted of taking part in
an unlawful procession and disobeying an order given by a police
officer. The Senate Standing Committee noted that, had he instead
been convicted of unlawful assembly, he again would have been
disqualified, because the maximum sentence for that particular
offence was a year's imprisonment. See Senate Standing Committee,
op. cit., p. 21.
- John Kalokerinos, 'Who May Sit? An Examination of the
Parliamentary Disqualification Provisions of the Commonwealth
Constitution', Papers on Parliament, no. 36, Department of
the Senate, Canberra, 2001, pp. 85-116.
- His vote declined from 51.03% to 43.69% in what was on both
occasions a two-man contest. For details see Colin Hughes and B.
Graham, Voting for the Australian House of Representatives
1901-1964, ANU Press, Canberra, 1974.
- ADB, vol. 10, pp. 97-8.
- See for example Bob Bennett, op. cit., Senate Standing
Committee, op. cit., Ian Holland, 'Candidacy
of Local Councillors for Federal Office', Research Note no.
21, Department of the Parliamentary Library, Canberra,
2002-03.
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