September 09, 2016 | Graham

Is Sam Dastyari eligible to be a senator?

Under Section 44 of the Australian Constitution there is every chance that Sam Dastyari is inelegible to sit as a senator.

Section 44 says:

44. Any person who –

(i) Is under any acknowledgement 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 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.

The key provision is 44 (i).

It has been held under this provision (see Sue v Hill) that someone who is a dual national, even though one of the nationalities is Australian, and the other is that of our closest foreign relative, the UK, is ineligible to be a senator. In that case One Nation senator Heather Hill was forced out by the High Court because she was both a UK and Australian citizen.

It did not matter that the relationship between Australia and the UK is as tight as it is.

The three key words with respect to Datyari are “allegiance”, “obedience” and “adherence”. He is obviously not a Chinese citizen, but the taking of money from the Chinese government, combined with his position on Chinese affairs, and the expectations of his donor that gifts will procure policy favours, gives rise to a rebuttable presumption that he is in either “obedience” or “adherence”.

A line like this was run in Nile v Wood in which the plaintiff was unsuccessful. However, analysis by John Kalakerinos, and published by the Department of the Senate, suggests that this would not necessarily mean a case against Dastyari would fail.

Nile v Wood18 (an action arising out of the 1987 election) was another attempt to rely on s 44(i). Elaine Nile brought a wide-ranging petition objecting to the declaration of Robert Wood of the Nuclear Disarmament Party as a senator for NSW, alleging breaches of paragraphs (i), (ii), and (iii) of s 44.19 On the ground relating to s 44(i), the petitioner alleged that Wood’s actions against the naval vessels of a friendly nation indicated allegiance, obedience or adherence to a foreign power.20
Sitting as the Court of Disputed Returns, Brennan, Deane and Toohey JJ held that the petition had set out insufficient facts to establish any acknowledgment of allegiance, obedience or adherence to a foreign power, failing even to identify the relevant foreign power. Speaking obiter, their Honours made the following comment about the first limb:

It would seem that s 44(i) relates only to a person who has formally or informally acknowledged allegiance, obedience or adherence to a foreign power and who has not withdrawn or revoked that acknowledgment.21

From Nile, then, certain requirements are necessary to enliven the first limb of s 44(i). First, a relevant foreign power must be identified. Secondly, there must be a formal or informal acknowledgment of allegiance, obedience, or adherence by the individual in question. Thirdly, the acknowledgment must not have been withdrawn or revoked.

Although the question of the application of the first limb did not arise for consideration before the full bench in Cleary,22 in his dissenting judgment, Deane J nevertheless commented that it ‘involves an element of acceptance or at least acquiescence on the part of the relevant person’.23

Although subsequent cases have not overturned the Nile test, linguistic and conceptual ambiguities make its application uncertain in the contemporary Australian context. What of the many Australians who possess strong links to former homelands or to the homelands of their ancestors? Does s 44(i) apply to Australian citizens who take an active interest in the affairs of foreign nations? In both of these situations the affections—although informal—may be strong, regardless of the possession of foreign citizenship, and may or may not be covered by s 44(i).

The ambiguities surrounding the first limb of s 44(i) have led to differing opinions as to the types of situations and conduct that would fall within it. Lumb and Moens, and Burmester,24 are of the opinion that the acceptance of a foreign award or honour would be insufficient to establish allegiance to a foreign power.25 Lumb and Moens assert that acting as honorary consul for a foreign power would also not be a ground for disqualification under s 44(i).26 Formal acknowledgment of allegiance is probably established by the acceptance of a foreign passport.27 Acts contrary to Australia’s national security interests, for example providing comfort to, raising funds for, or assisting with the military operations of countries or causes unfriendly to Australia, would be likely to constitute an acknowledgment of adherence, and thus contravene s 44(i). Serving in foreign armed forces has been cited as conduct that would constitute formal allegiance.28 However, where military service is imposed compulsorily upon individuals, without any formal or informal acknowledgment, I submit that it would not necessarily constitute an acknowledgment of allegiance, but such a situation has yet to arise in court.29

Further, s 44(i) provides ineffective protection from contemporary forms of foreign influence. For example, it probably does not shield the Parliament from insidious ‘foreign commercial interests’, such as donations to political parties from foreign corporations or individuals.30

The critical part of Kalakerinos’ analysis is “providing comfort to, raising funds for, or assisting with the military operations of countries or causes unfriendly to Australia, would be likely to constitute an acknowledgment of adherence, and thus contravene s 44(i)”.

It is beyond belief that the ALP is so corrupt that partisans like Graham Richardson are already looking towards the re-elevation of Dastyari. What he has done disqualifies him from representing Australia and ought to see him resigning himself from the Senate to avoid any further embarrassment.

This is a matter that the Senate itself should resolve to litigate. If it doesn’t, then a civic-minded citizen should take it on themselves.

At this serious juncture in our national history where south Asia is rearming there should be no tolerance of behaviour which betrays the national interest, certainly not from our elected representatives.

Posted by Graham at 2:53 pm | Comments (8) |
Filed under: Uncategorized


  1. […] Originally posted at Ambit Gambit. […]

    Pingback by Cross Post: Graham Young Is Sam Dastyari eligible to be a senator? | Catallaxy Files — September 9, 2016 @ 3:34 pm

  2. Graham, might be to time to retire, old chap. This hyperbolic argument is utterly unconvincing and, frankly, ridiculous. No wonder it’s going over well at Catallaxy – where sensible political and economic commentary goes to die.

    Comment by steve — September 9, 2016 @ 7:18 pm

  3. I agree with most of what you say Graham, but wonder if any of it actually applies to Sam? But may well apply to those who seem to be trying to sell (death by a thousand cuts) Australia piece by piece to foreign powers?

    Yes, the chinese might expect that some cash might elicit some favourable treatment or comment? But seriously? $1600.00 lousy dollars?

    I think anyone earning around $20,000.00 month would look at that amount as petty cash?

    I think one needs to walk in another man’s shoes before passing (lightening fast) ill considered judgement?

    Even those with the highest moral fibre and incorruptible integrity are capable of an error or judgement or oversight!

    Sam is a migrant, who like many migrants may be more fiercely loyal to his adopted country than many native born?

    And here I’m drawn to our wharves and some of the nation harming bastardry that has gone on there in our not so recent or relatively recent past!

    I believe the whole thing was a cleverly managed, stage managed setup? Where Sam has thrown himself under an allegorical bus, to get foreign funding, questionable relationships, cash for comment or political outcomes; and junkets front and centre?

    Was a former speaker asked to resign, when she used “our money” to fly to a private function? No the Prime minister of the day stood shoulder to shoulder and defended her, before throwing her under an allegorical bus!

    And the defence cited there was, not outside the rules either, apparently?

    That said, given the controversy and hysterical hyperbole stirred up by Sam, $1600.00 well spent? I mean, it could have just as easily been passed under a table or some such and we’d likely never ever know about it!?

    As for judge jury and executioner (pot calling the kettle black) Mr Richardson? I’m just not sure his own moral values (or price?) would stack up as superior to Sam’s?

    I believe the highly venerated Mr Richardson, retired from politics to take up a very well rewarded “consultancy” position?

    At the end of the day, I believe we will find, all the huffing and puffing detractors have been played like a piano?

    And the cheapest political advertising we’ll likely see ever?
    Alan B. Goulding

    Comment by Alan B. Goulding — September 10, 2016 @ 11:18 am

  4. Alan, there was a lot more money than $1,600. Also $40,000 in legal fees, and who knows what else. And you can’t dispute the fact that Sam then backed a Chinese position knowing it to be against his party’s policy, against the public interest, and factually incorrect. Everyone says Dastyari is smart, so one has to assume he did all of this knowingly. Unfortunately Labor has a history of standing up for crooks. And this is another example, with the added touch that this crook would sell the country down the river for personal benefit.

    Comment by Graham Young — September 10, 2016 @ 11:25 am

  5. I don’t dispute anything! And I don’t know where you get that $40,000.00 from? PLease let me have link so I can see for myself!

    All the hyperbole seems to be over the piddling published amount of 1600 lousy Dollars! If Sam was a crook then we’d likely not know about the “money” And yes, he probably did it all knowingly to provoke a highly predictable politically motivated response? Played like a piano?
    Cheers, Alan.

    Comment by Alan B. Goulding — September 10, 2016 @ 11:43 am

  6. Graham, if there have been dastardly deeds done in the dead of night and Mr Dastyari has taken $40,000.00 allegedly? To cover legal debt he ostensibly, didn’t want to pay?

    And given that is proven!? Then he has to go! Let there be no shadow of doubt, his position becomes entirely untenable!

    Perhaps a consultancy position with a Chinese firm already here and active, beckons?
    Cheers, Alan B. Goulding

    Comment by Alan B. Goulding — September 11, 2016 @ 10:37 am

  7. Dear O Dear does that mean that Robb who took money off a Chinese billionaire to donate to the Libs while negotiating the Aust Chinese should go along with Bishop,
    Some of you right wingers live in Fantasy land

    Comment by john Ryan — September 12, 2016 @ 5:33 pm

  8. I don’t think Sam’s allegiance is to the Chinese, rather he is following in Bob Carr’s footsteps and salutes the dollar.

    Comment by Jeff Hosking — September 17, 2016 @ 10:04 am

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