Does being on a Disability Pension disqualify a person from standing for a seat in a Federal Election under this rule?
http://en.wikipedia.org/wiki/Section_44_of_the_Constitution_of_Australia
Thanks for your input in advance.

Hi Ban,

I don't know whether you are knowledgeable in Jewish religious law, but your question is a bit like the question: "Is a Jewish priest allowed to marry his widow's sister?"

One is on disability pension because their disability prevents them to work. Being a parliamentarian is a hard job, so how can they do it?

Yuyutsu, that's a common sense response, something that I fear is fast becoming foriegn in this world of PCisum.

No doubt some baton carrier for the anti discrimination brigade will have an argument to suggest otherwise.

Welcome mate.
And do not let the posters like that one stop you.
Go for it, and in my view if and once elected you MAY have to give up the pension.
As you THEN not before would be working.

My understanding of this section44 is that if you are in receipt of a Government pension, other than from armed forces , you can't stand for election.

I don't see it as precluding people with disabilities as such, just those on a pension already.
Previous Senator Graham Edwards had a disability, but was an effective senator.

What surprised me most was the fact you could have been imprisoned as a criminal for up to one year, and still be eligible for election!

Dear Suse,

<<What surprised me most was the fact you could have been imprisoned as a criminal for up to one year, and still be eligible for election!>>

It's not your sentence that count, but the maximum sentence for the offence you are convicted of.

So if you are convicted of an offence that carries a maximum one year jail, even if you are only sentenced to pay a fine and have not paid it yet, or to do community service which you haven't completed, or got a suspended sentence that is still in force or even are on a good-behaviour bond, you cannot be elected or retain your seat.

OTOH, if you are convicted of 3 different offences for which the maximum sentence is 6 month jail (or 3 counts of that same offence) and are sentenced to 18 month jail, you can still be elected or retain your parliamentary seat.

In any case, once you complete serving your sentence, including parole time, you can again be elected, unless you were convicted of treason.

Dear Belly,

<<And do not let the posters like that one stop you.>>

I am not stopping him/her in any way - see my Jewish-law question!

Thanks for that info Yuyitsu , although I remain shocked that even some people who have been in jail for up to a year can run for election.

<<although I remain shocked that even some people who have been in jail for up to a year can run for election.>>

And even over a year, once they completed their term.

But what's the problem with that?

If you don't want someone who has been in jail to represent you, then just don't vote for them. This information should be publicly available and you can rely on the other candidates to publish it.

Looking at most current politicians (those who have not yet been caught), I think that prisoners could do a better job!

Better a competent & experienced crook than an incompetent & inexperienced do-gooder.

Unfortunately politicians are always incompetent crooks.

Cheers,

Tony

Yuyutsu,

I'm not up on the finer points of law, so would you clarify something for me please.

If an elected member is found to have misused funds [i.e. travel funds or paying for family and friends on supposedly parliamentary business], and pays that amount back before any further proceedings are brought against him/her, does that mean there will be no further repercussions against them - even if they knowingly did this in the hope it would be overlooked?

In my mind, paying back an amount which has been used for anything other than parliamentary business should not be sufficient reason for the person to not be charged with the offence just because they've been caught out.

Dear Worldwatcher,

Perhaps we would like it to be different, but as it stands, a politician just like any other citizen is considered innocent unless proven guilty by a court of law.

Ethically you are very right, such an elected member should be charged despite returning the money. In practice however, the public prosecutor is not obliged to actually charge anyone, especially if there is no "public interest" in that charge. The member may claim that they made an honest mistake and the prosecutor may decide to formally believe the member, end of story.

From my reading of Section 44.4 (why are we still using roman numerals when the regular numerals are so much easier?) and it's exceptions it says that disability pensioners are excluded - along with anybody else receiving Centrelink benefits, public servants of all stripes and members of the RAAF: the exclusions only seem to apply to members of the AA (Australian Army) and RAN (Royal Australian Navy).

It seems a bit odd that only some soldiers can run for government - RAAF soldiers need not apply.

But why are you asking this question on this forum? I've given my two cents and that's about all it's worth as legal advice: I'm a chef. Your best bet would be to address this question to your local MP because
1) He knows the system. He's played the system. He's part of the system. I think it's fair to say that he understands the system better than just about anybody.
2) He almost certainly has a law degree. I've heard our political system referred to as 'representative' democracy but it's BS: damn near every MP is a lawyer by trade. There are very few engineers, scientists, teachers, doctors, architects, nurses or any other representatives of vital professions. There are definitely no chefs - probably no tradesmen of any variety. So much for 'representative' democracy.

Your local MP may not have much in the way of general or practical knowledge, but he's probably a law nerd and so he'd be your best bet for good answers to legal questions.

Cheers,

Tony

No incompetent crook could be a politician if the voters had brains. The present situation being a perfect example.

The AEC Electoral Backgrounder - Constitutional, Disqualifications and Intending Candidates, April 2010 unhelpfully says:

"29. The second part of the s. 44(iv) disqualification refers to a person in receipt of a “pension payable during the pleasure of the Crown out of any of the revenues of the Commonwealth”. this part of the provision has not yet been judicially considered. However, it is unlikely that pensions payable under the Social Security Act 1991 (Cth) or other legislation conferring similar benefits, or superannuation entitlements, would disqualify an intending candidate. "

The court case to see if anti-discrimination law on the basis of disability trumped this section would be interesting...

Further:

"41. Candidates make a declaration on the nomination form and the AEC is required to accept this declaration at face value for the purposes of nomination. If the qualifications of a candidate are found during or after the election to lack credibility, then proceedings can be instituted against the candidate in the Court of Disputed Returns after the election, which could result in the election being voided. other proceedings in the lower courts could result in a candidate being convicted for the offence of providing false and misleading information on a nomination form."

Decide whether you are satisfied with the wording of the declaration. If so, sign and stand.

(Probably wise to have the pro bono legal team in place to save time when contested in the Court of Disputed Returns.)

Thanks for all the thoughts and advice. I have asked a MP to look into the matter for me but I thought I'd do a bit of research myself. I am standing as a candidate in the next Federal Election and a reference was made in the press by the sitting member about all candidates must make sure they fully comply with section 44. I am on a Disability Pension so it could only have been directed at me. This person is also my local Federal MP so you see part of my problem. I'm trying to find out if I will have to hand in the pension when I officially nominate to avoid being excluded and a by election if I win. I also noticed in the notes on that section that a deal has been done for Public Servants that they can resign and then be given their job back if they lose. I wonder if the same can be done for a Pensioner?

>>I also noticed in the notes on that section that a deal has been done for Public Servants that they can resign and then be given their job back if they lose. I wonder if the same can be done for a Pensioner?<<

A pension isn't a job so you can't resign. You can stop receiving it then re-apply for it later. Assuming the nature of your disability hasn't changed, you shouldn't have any trouble being reinstated for the pension.

Cheers,

Tony

Firstly, I should clarify my previous post, as there are varying degrees of disability, with some Only receiving a part pension, and these people are quite capable of performing certain tasks.

From memory, Churchill was in a wheel chair I thought. Or was it someone else?

Yuyutsu says...If you don't want someone who has been in jail to represent you, then just don't vote for them.

Yes but that's only after they have made it through pre selection.

Some may argue that a more able person would have been a better alternative.

Here is a more detailed discussion paper about some of the definitional and legal aspects:

http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=%28Id:library/prspub/3z910%29;rec=0;

It doesn't cover Tony's point regarding the RAAF which of course could only have existed at the time the Constitution was written if the Colonial Armed Forces had used Lawrence Hargraves' kites - a silly idea with no strings attached.

Thanks for that Trevor. It looks to have solved my problem. Have a nice day.

Ban 1956 I am sure you can get elected then drop the pension.
Thanks rechtub for withdrawing you rude and needless post.
Our parliaments have at state and federal leverl banned discrimination on the grounds of disability.
As you second post said, having taken a breath, their are great numbers of disability's.
Some would not preclude our author do as well as me or you.
Good luck Ban, no mater what your views are.

Cheers and thanks. I am standing for the KAP in the seat of Hume in case your interested in following my exploits. Thanks all for your help in sorting this matter for me.
Bruce

Bruce
Here is the link for contacting the Australian Electoral Commission: http://www.aec.gov.au/About_AEC/Contact_the_AEC/index.htm

I am sure they will put you straight on any questions on eligibility.

Yuyutsu's point is valid though, if a would-be candidate is on a full disability pension the implication is that they are unable to work. But perhaps this is not the case. My understanding is many on the DP are looking for work, and being encouraged to find work by the government even for part-hours. There is no reason why a disability would preclude unless it makes one unable to fulfill their responsibilities.

ban,
If I were you I would talk to the Goulburn office of the AEC. The bloke in charge there will give you what you need to know. You will be standing in my electorate.

Being a cynic I don't have a lot of time for either of the major parties, so I will probably vote for you so the majors will not get the $2.00+, but will definately put Labor last. Hope you get enough votes to get the $2.00+ for my vote.

This government has to go and the reality is the Liberals are the alternative.

Somebody said all pollys are lawyers. Wrong, the current member for Hume was a meat worker. He is retiring this year but has served the electorate well. Others may well have been anything but lawyers.