malcolm roberts
One Nation senator Malcolm Roberts (Image: AAP/Mick Tsikas)

The news is out: I sued One Nation Senator Malcolm Roberts under the Common Informers (Parliamentary Disqualifications) Act and I had a bit of a win. I won $6000 and court costs. Though it will be nice for me and my wife to get an electric bike each, the money was not really the point. The most important thing was successfully using the act and winning.

A lot of people have asked me why I bothered, and the answer is pretty simple: Peta Credlin. In 2013 I asked Tony Abbott, our then newly-elected prime minister, to show his renunciation of British citizenship papers. He refused to answer my letters so I contacted his parliamentary office and suggested to his chief of staff that a freedom of information request could get things moving.

Credlin told me that she was authorised to make FOI decisions on Abbott’s behalf, and thus refused the request “on the grounds that the document … is not an official document of a minister and is therefore not a document to which you have a right of access under the FOI Act“.

I was irked. Good old fashioned irkdom took over and I started looking at our constitution (in particular Section 44) and asking questions of those MPs who were born overseas. None replied, so a Twitter ordeal began. This helped contribute to many (so many) MPs being removed from parliament.

The Section 44 saga

Of course, I wasn’t the only person doing this. Many others took up the fight, and it was pleasing to see the court actions finally happen. One man in Perth drew up a petition asking Abbott to show his renunciation papers and it got 60,000 signatures. That petition was given to several politicians and they used the paperwork to line their kitty litter trays.

But back to Malcolm Roberts. When I learned he was standing for parliament I wrote and asked him to make sure he had renounced his foreign citizenships. His Indian citizenship seemed the most likely to cause problems and the associated British citizenship was the one that did him over. I was mentioned in the High Court chronology for him and this, in my mind, tied me to his case.  

During my irkdom about Peta Credlin, I had looked at the penalties in the constitution for breaching Section 44 and thought this might be good for Roberts. The original part of the constitution says the penalty is £100 per day and any person could sue for that amount.

When the constitution was written, the £100 was a quarter of an MP’s annual salary. That part of the constitution was replaced by the Common Informers (Parliamentary Disqualifications) Act in 1975 — at a time when Malcolm Fraser was trying to overthrow the Whitlam government. Whitlam had a few pommies and other nationalities in his government, and the act seems to have been designed to save those MPs money if they were ever taken to court.

After starting my action against Roberts — after rejections from nearly all of the major legal companies in Queensland — I lodged a petition in parliament asking for the penalty to reflect what was originally in our constitution: a quarter of an MP’s annual salary. Barring that, I suggested that the £100 could be adjusted for inflation which would make it about $15,000 a day.

Attorney-General Christian Porter refused both ideas saying the penalty was a sufficient deterrent. The deterrent is approximately the food allowance each MP gets on sitting days. 

So, what does this win mean?

Can everyone now take on our fallen MPs? I wouldn’t recommend it. The action can only happen within one year of the MP being removed; the legal costs can be pretty expensive (especially if you aren’t successful); and the payouts aren’t great. The system is set up so that any number of people can lodge cases against removed MPs, but the $200 a day is the maximum that can be paid. If 10 lodge action and win, they only get $20 each per day.

The win should instead signal a show of strength for the law itself. 

Peter Dutton recently declared that nobody is above the law while speaking about Australian journalists, but what about our politicians? There have been Section 44 questions raised about both Dutton himself and Treasurer Josh Frydenberg, and that doubt should surely extend to declarations made on their nomination for 2019 election forms and the new qualifications checklists.

The Australian Electoral Commission doesn’t have the authority in its legislation to prosecute anyone for anything, but in a press release related to another One Nation Section 44 problem (Rod Culleton) it said that “if the AEC is presented with compelling evidence that other candidates in the 2019 federal election may have also signed a false declaration we will consider whether similar referrals to the AFP are warranted to ascertain if the candidate has committed an offence”.

I wrote to Tom Rogers, Chair of the AEC, about this and he responded that the matters were dealt with in the last parliament. It wasn’t the last parliament I was writing about; it was the potential signing of false declarations to nominate for the 2019 election.

Hopefully Dutton and Frydenberg will be taken to the Court of Disputed Returns, and the forms will be investigated by the AFP. Our politicians must know that they are not above the law.

An earlier version of this piece stated this was the first use of the Common Informers (Parliamentary Disqualifications) Act. It has since been amended.

Peter Fray

Inoculate yourself against the spin

Get Crikey for just $1 a week and protect yourself against news that goes viral.

If you haven’t joined us yet, subscribe today to get your first 12 weeks for $12 and get the journalism you need to navigate the spin.

Peter Fray
Editor-in-chief of Crikey