Talk:Section 44 of the Australian Constitution
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A fact from Section 44 of the Australian Constitution appeared on Wikipedia's Main Page in the Did you know? column on 28 December 2007. |
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It's not a bad start to this article, but I'm a bit bemused as to how one can write an article about S44 without mentioning Sykes v Cleary, the case which spawned most of the modern caselaw about it. Rebecca (talk) 10:58, 23 December 2007 (UTC)
[edit] Standing or elected?
The first para of the article refers (twice) to standing for parliament, whereas the Act refers to being 'incapable of being chosen or of sitting". Does that mean that you can stand as a dual citizen, but you can't be elected? WWGB (talk) 12:14, 23 December 2007 (UTC)
- The relevant part of the constitution says "shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives". I personally interpret that as "you can stand, you just can't actually be elected or take your seat". In practice, I suspect they are the same thing, and the various sources use one or the other. Lankiveil (talk) 12:23, 23 December 2007 (UTC).
- Under the section entitled "Who can nominate as a candidate?" of this Electoral Commission page: [1], it states "You cannot nominate for the Senate or the House of Representatives if you: ... are disqualified by section 44 of the Constitution and have not remedied that disqualification before nomination", which is counter to what I put above. Can anyone more versed in constitutional law shine a light upon this? Lankiveil (talk) 12:28, 23 December 2007 (UTC).
- I'll dig up my public law notes in a couple of days if Thebainer hasn't gotten to it first (it's nearly midnight and I'm too tired to be doing this sort of thing). In the meantime, I really suggest that someone write a section on Sykes v Cleary, as it strikes me as very odd to mentioning the Scullion and Newhouse issues and not the major piece of caselaw on the section. (While we're on the topic, Free v Kelly should probably be in here too.) I'd do it myself, but I probably won't have a chance for a few days with Christmas and all. Rebecca (talk) 12:46, 23 December 2007 (UTC)
- Some relevant material: Sykes v Cleary, SMH article, Free v Kelly. WWGB (talk) 13:04, 23 December 2007 (UTC)
- I've added a short section. I freely admit I know not much more than the average layman about this topic, I was merely trying to assist in the Good Article assessment of Sue v Hill, idly clicked on the link, and got interested. So, if there are any elementary errors of interpretation, I do apologise. Lankiveil (talk) 13:35, 23 December 2007 (UTC).
- Thanks for adding that - it's brief, but it'll do for now. I'll aim to expand it some (and write seperate articles for Cleary and Kelly) - I remember being examined pretty heavily on this stuff, so I should be able to expand it in a bit more detail.
- I'll dig up my public law notes in a couple of days if Thebainer hasn't gotten to it first (it's nearly midnight and I'm too tired to be doing this sort of thing). In the meantime, I really suggest that someone write a section on Sykes v Cleary, as it strikes me as very odd to mentioning the Scullion and Newhouse issues and not the major piece of caselaw on the section. (While we're on the topic, Free v Kelly should probably be in here too.) I'd do it myself, but I probably won't have a chance for a few days with Christmas and all. Rebecca (talk) 12:46, 23 December 2007 (UTC)
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- I also deleted the section about Nigel Scullion. He simply consulted for advice, concluded he was in the clear, and nothing more came of it. From memory, thirty or so MPs had to do the same after Cleary - there was quite a public kerfuffle back then, and the only thing that's really any different about Scullion is that he had to more recently. We'd be better to stick to the actual caselaw. Rebecca (talk) 13:43, 23 December 2007 (UTC)
- Fair enough. Is there any examples of anyone getting skewered on the thing that Scullion was worried about? I think the article would benefit from covering a variety of situations, not just forgetful public servants forgetting to resign before they registered. Lankiveil (talk) 13:55, 23 December 2007 (UTC).
- Yep - there's an actual case on this point. Re Webster, sometime in the late 1970s. Similar sort of situation to that of Scullion with a Country Party Senator, Fraser government-sympathetic court ruled he was fine. Scullion may well have gotten off easily because of that case, though I'd have to recheck the detail. Rebecca (talk) 18:48, 23 December 2007 (UTC)
- Fair enough. Is there any examples of anyone getting skewered on the thing that Scullion was worried about? I think the article would benefit from covering a variety of situations, not just forgetful public servants forgetting to resign before they registered. Lankiveil (talk) 13:55, 23 December 2007 (UTC).
- I also deleted the section about Nigel Scullion. He simply consulted for advice, concluded he was in the clear, and nothing more came of it. From memory, thirty or so MPs had to do the same after Cleary - there was quite a public kerfuffle back then, and the only thing that's really any different about Scullion is that he had to more recently. We'd be better to stick to the actual caselaw. Rebecca (talk) 13:43, 23 December 2007 (UTC)
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