Submitted by Peter Kempon Mon, 01/02/2012 – 10:31
On Christmas day 2011 @Wikileaks posted a most intriguing question on twitter.
Lawyers traditionally, rarely give free legal advice off the cuff in unfamiliar areas without ‘due diligence’ research. One case of that was the wrong investment advice given at a social function and a lawsuit that followed – moral, that’s why you should never ask a lawyer at a party for free advice, you might have to sue – however, on this occasion the question was so intriguing, a quick check of the Commonwealth’s Electoral Act section 163 and section 42/43 of the constitution revealed some relatively simple law:
s163 Qualifications for nomination [see Note 5]
(1) A person who:
(a) has reached the age of 18 years;
(b) is an Australian citizen; and
(c) is either:
(i) an elector entitled to vote at a House of Representatives election; or
(ii) a person qualified to become such an elector;
is qualified to be elected as a Senator or a member of the House of Representatives.
(2) A person is not entitled to be nominated for election as a Senator or a member of the House of Representatives unless the person is qualified under subsection (1).
Note 5 refers to sections 43 and 44 of the Australian Constitution:
43 Member of one House ineligible for other
A member of either House of the Parliament shall be incapable of being chosen or of sitting as a member of the other House.
Any person who:
(i) Is under any acknowledgment of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power; or
(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; or
(iii) Is an undischarged bankrupt or insolvent; or
(iv) Holds any office of profit under the Crown, or any pension payable during the pleasure of the Crown out of any of the revenues of the Commonwealth; or
(v) Has any direct or indirect pecuniary interest in any agreement with the Public Service of the Commonwealth otherwise than as a member and in common with the other members of an incorporated company consisting of more than twenty-five persons;
shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.
On the strength of this, without further ado*, this writer tweeted in the affirmative to the extent of the above.
For an excellent article on “Crime and Candidacy” in an Australian and international context (and with a summary of Australian state laws) click here
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)
The above history is a strong indicator that laws which leave it for voters to ‘disqualify’ a candidate rather than the ‘law’ itself doing the disqualifying, is arguably by far, much more democratic.
Electors like jurors, often have an uncanny ability to recognise what is just and proper on the issue of criminality. Politicians whose ‘crimes’ are related to arrest for protest of putatively unjust laws clearly will have a better time with electors than politicians who cheat for example on their travel expenses. “Underdogs” such as Julian Assange facing the might of a Swedish legal system’s powers under the European Arrest Warrant system and the wrath of the US Empire, appears to have found great support in Australia which is support I assert which will easily be transposed to political support of a candidacy.
Discarding with ease the opinions of those who would say Julian Assange has committed treason to the US and/or Australia, the operative words for disqualification pertinent to Julian Assange’s case is serving a sentence of a year or more for Commonwealth or State offences. Clearly that precludes whatever happens in Sweden (or the USA for that matter.)
Having Julian Assange elected to the Senate would give him some advantages, at the very least the embarrassment of the Australian government having to communicate to whatever authority in Sweden – or the USA as the case may be – about ‘Senator Assange’ or, if ensconced in Parliament, the embarrassment for Attorney General Nicola Roxon if ASIO was found to have tapped Julian Assange’s parliamentary phone and internet connection: however, one Senator is a drop in the bucket in the scheme of a two party virtual monopoly on political power in Australia, with the Senate being a ‘House of Review’ and representing partisan party interests rather than the intended constitutional interests of the States.
I anticipate seismic shifts, interesting and amusing scenarios/battles if Julian Assange is elected. Day one for example: “No, you not are allowed to connect a Tor relay server to the Parliamentary internet system. ASIO would have a collective heart attack.”
On worthy sharing of skills among parliamentarians: “No, I will not be starting a Godwin Grech Crèche for parliamentarians to learn how to detect forged emails that were never sent.”
A Wikileaks Party?
A ‘Wikileaks Party’ makes great sense. It is an eminently logical extension of Julian Assange’s question – having other members in a formal party contesting (and winning) State and Federal elections in all houses. It is not only feasible but likely given the support levels in Australia. It will bring the ‘battle’ right inside the ‘Houses’ where government policy has effectively said: Leave Julian Assange to His Fate in Sweden and/or the USA.)
Australia’s two party system and bicameral houses.
Minor parties in the Australian Federal parliament have always had a tough time surviving let alone retaining party status for example maintaining a minimum requirement of five members in House of Representatives and/or the Senate. Party status gives additional staff for members and additional travel allowances and benefits for party leaders. The Australian Democrats are a good example of a minor party who strongly established themselves in the Senate under the leadership of Don Chipp whose mantra was to Keep the bastards honest.
Over the years, with considerable destructive infighting being one major factor, the Democrats withered away, lost party status towards the end, and were extinct (federally) in 2008 after thirty years.
As one of those Democrat senators experienced, making the transition to the lower house is very difficult.
House of Representative (“HoR”) seats are contested by preferential voting in electorates of approximate equal numbers of electors. It is far far harder for a minor party candidate or independent to win a majority of votes (inclusive of preferences) compared to a Senate seat with proportional representation. It is especially difficult for a strong independent candidate where the major two parties have done a Faustian deal with a preference swap. Those preferences are put on how to vote cards handed out by the party outside polling stations for those who follow the ‘party’ preferential line which may cruel the independent/minor party candidate, which is exactly what happened to Janine Haines.
That independents currently hold the balance of power in the House of Representatives is most unusual. Suffice it to say the reason those independents are there is another complex story, except to say simplistically, they mostly belonged to major parties, fell out due to eg being disendorsed, and continued successfully as independents for various different reasons such as charisma and demographic change.
This is not to say that a ‘Wikileaks’ party could not win seats in the lower house. The two party system some would say has perverted our politics such that there is often bipartisan policy on crucial issues (war for example, anti-terrorist legislation, being a lackey to the US) that the majority of Australians do not agree with from time to time (if not all the time on war in Iraq and Afghanistan), notwithstanding that a majority support the Australian/US Alliance.
If that is a reasonable assessment of political reality (which always has a ‘liberal bias’ according to Stephen Colbert) then it is also reasonable (and democratic) if people want to change the Tweedledum and Tweedledee bipartisanship on war that exists not only in Australia but elsewhere, and is always characterised over the last decade, it seems, by the movement of left and centre left parties to the centre right – note Obama of late squatting in GOP ‘territory’ and thereby pushing some GOP presidential candidates towards the right of Ghengis Khan.
A Wikileaks party could well contest the HoR and take advantage of these ‘unusual’ times.
There must be at least fifteen electorates across Australia (Possum Comitatus @Pollytics kindly advise) with a preponderance of young people who are favourable to Wikileaks, along with others including traditional two party supporters and swinging voters looking for an alternative to the status quo of the cacophony of insults and incessant interruptions that passes for debate these days in our Federal HoR along with negative politics and politicians beholden to the Murdocracy. Such voters might therefore support a ‘Wikileaks’ party perhaps sufficiently to win a significant number of lower house seats.
The lower hanging fruit for new parties is the Australian Senate, simply because of the proportional representation process of electing Senators.
The powers of the two houses of the Commonwealth Parliament, the Senate and the House of Representatives, are defined by the Australian Constitution. All proposed laws (bills) must be passed by both houses. The Senate’s law-making powers are equal to those of the House of Representatives except that it cannot introduce or amend proposed laws that authorise expenditure for the ordinary annual services of the government or that impose taxation. The Senate can, however, request that the House of Representatives make amendments to financial legislation and it can refuse to pass any bill.
Under the Constitution, each state of the Australian federation, regardless of its population, has an equal number of senators. This weighting of parliamentary representation in favour of less populous states was designed to ensure that their views were not neglected.
The Senate currently consists of 76 senators, elected by a system of proportional representation. Twelve senators represent each of the six states, elected for a period of six years. A system of rotation, however, ensures that half the Senate retires every three years. The four senators who represent the Australian Capital Territory and the Northern Territory are elected concurrently with members of the House of Representatives and the duration of their terms of office coincide with those for that House (a maximum of three years).
The proportional system of voting used to elect senators ensures that the composition of the Senate more accurately reflects the votes of the electors than the method used to elect members of the House of Representatives. Proportional representation also makes it easier for independents and the candidates of the smaller parties to be elected. In recent decades this has meant that the government party usually does not have a majority of votes in the Senate and the non‑government senators are able to use their combined voting power to reject or amend government legislation. The Senate’s large and active committee system also enables senators to inquire into policy issues in depth and to scrutinize the way laws and policies are administered by ministers and public servants. The Senate is thus a house of review and a powerful check on the government of the day. Detailed analysis of election results makes it clear that many Australians deliberately cast their votes in Senate elections with this review role in mind.
What would be a Wikileaks party policy be like?
The former Democrats had a most democratic policy of members deciding policy, however there is a common policy that Wikileaks supporters inherently appreciate: the transparency that Wikileaks creates in leaking documents:
Publishing improves transparency, and this transparency creates a better society for all people. Better scrutiny leads to reduced corruption and stronger democracies in all society’s institutions, including government, corporations and other organisations. A healthy, vibrant and inquisitive journalistic media plays a vital role in achieving these goals. We are part of that media.
Scrutiny requires information. Historically, information has been costly in terms of human life, human rights and economics. As a result of technical advances particularly the internet and cryptography – the risks of conveying important information can be lowered. In its landmark ruling on the Pentagon Papers, the US Supreme Court ruled that “only a free and unrestrained press can effectively expose deception in government.” We agree.
Politicians who endorse transparency in government; who promote the spread of information and not propaganda through the Parliaments of Australia; who honestly scrutinise the legislative instruments and organs of the state to combat injustice and prejudice; who properly represent the interests of all citizens without fear or favour of foreign powers: that’s the kind of politician and a party so many of us would like to see.
This writer incidentally misses the wit of conviction politicians, even that warhorse, Anglophile and Australiaphobic Robert Gordon Menzies, prime minister of a bygone age, when accosted at a political gathering:
I wouldn’t vote for you even if you were the Archangel Gabriel.
Madam, if I were the Archangel Gabriel, you wouldn’t be in my constituency.
(Readers are invited to suggest a name for such a ‘Wikileaks’ party in comments below.)