Is Senator Payman disqualified? Section 44 redux

Questions have been raised by journalists about whether Senator Payman is disqualified from being elected to, or sitting in, the Australian Senate because she is a dual citizen of Afghanistan and Australia.
This video addresses the interpretation by the High Court of Australia, as the Court of Disputed Returns, of section 44(i) of the Constitution and its application to dual citizens when there is an 'irremediable impediment' to their renunciation of foreign citizenship. It discusses the Court's comments on this issue in Sykes v Cleary and Re Gallagher, and the lingering problem of whether delay or inaction can amount to an irremediable impediment. It notes the absence of facts about the law and practice concerning the renunciation of citizenship in Afghanistan, which makes any conclusion difficult to reach.
The video raises the further question of timing. If a Senator's nomination and election was valid because there was an irremediable impediment to renunciation at the time, but that impediment was later removed, during the Senator's term of office, would that cause a vacancy in the Senator's seat under section 45 of the Constitution?
Finally, the video addresses the ways such a question could reach the Court. As the 40 days for challenges after the return of the election writs has long since ended, the only way the issue would get before the Court of Disputed Returns is by a reference from the Senate, which seems unlikely in the circumstances.

[@deniseorourke7235]

It’s mighty convenient that labour brings this up now prior to her resignation there was no mention of section 44

[@chrisbuesnell3428]

Labor hasnt brought it up. Nor will they

[@aerime]

Some people said something doesnt mean Labor is bringing it up.

[@Amazing41000]

Media reporters are bringing it up not labor. If labor wanted to bring it up they would simply of done a motion referring the matter to the court Which they haven’t done

[@QZS282]

it was not applicable, the Senator was effectively stateless until become a naturalized Australian...

[@thash1]

It's legal when supporting child killing Zionist religious extremist colonialism , it's illegal to be with humanity. My foot.

[@kabdu68]

Labor did this. It has their fingerprints all over it.

[@user-ky5kd8jd6r]

Wake up Australia

[@sthradhervernon7654]

To what.

[@wotizit]

​@@sthradhervernon7654 to Pauline Hanson 😂

[@Saimondsongs7958]

I wake up at 6 am to go to work😂

[@derekmottley3656]

​@@Saimondsongs7958 I bet you do .......

[@johnnyjrotten59]

Communism is the Retarded version of NAZISM.

[@darkstars-torpedoes-of-truth]

In other words, nothing will be done.

[@lachlanmcgowan5712]

Nothing needs to be done, there is no violation. The Labor hollowmen just want to scare Payman into resigning so they can get the seat back.

[@repairman2be250]

I am afraid so.

[@paulypaulypauly8011]

As usual

[@ricochet2977]

I was honest in my deceit?

[@AnotherDoug]

Or is it more: nothing should be done.

[@jmcham1000]

Senator Payman has stated that she was told by the Afghanistan embassy in Australia that they do not have contact with the Taliban government in Afghanistan so they could not proccess her application. If this is the case is this embassy actually a functioning entity of any government.

[@testicool013]

And who’s footing the bill for this embassy

[@robertthomson1587]

@@testicool013 Indeed.

[@chrisholznagel7428]

And your point is.

[@testicool013]

@@chrisholznagel7428 work it out genius

[@sandponics]

It is probably a functioning entity of the CIA.

[@paulwalker5221]

It is really odd, that Labor had no issue with Senator Payman's status, until the Senator split from the party. Very odd indeed that the information comes to light now. Labor needs to explain.

[@thash1]

It's legal when supporting child killing Zionist religious extremist colonialism , it's illegal to be with humanity. My foot.

[@danieltynan5301]

Not odd at all but was never suitable as a senate candidate.......

[@XxBloggs]

Why odd?

[@timtench3334]

@@danieltynan5301 And you are qualified to judge who's suitable to be a senate candidate?

[@danieltynan5301]

@@timtench3334 she proved that her self by crossing the floor on an issue that has nothing to do with Western Australia..... Seriously......

[@stevep2430]

All this proves is that party politics should be outlawed from the senate, they should be all independent, so as to keep the upper house doing their jobs properly. There should also be more then two parties that can be in office. What we have now, is not a democracy but a duopoly with much the same policies, none that help the country.

[@mkkrupp2462]

The Senate is fundamentally undemocratic because all the States have an equal number of Senators regardless of the fact that they have very different population numbers. Eg Tasmania with just over half a million people and NSW with several million. Do we need a Senate anyway ? They do not operate as State houses (ie representing their particular States) as originally intended by the drafters of the Constitution. The QueenslandParliament has happily operated without an upper house since 1921.

[@margaretkobier]

@@stevep2430 yes, an independent senate to review and debate ALL government legislation

[@lawrence1318]

Correct. And commensurately, Section 15 of the Constitution is, ironically, unconstitutional, being discordant with the non-party bent of the Constitution.

[@robertperry814]

I've been listening to this series and I'm not even Australian! Every country should have someone like this to explain their gov't in such unbiased no nonsense calm rational language.

[@constitutionalclarion1901]

Thanks. Much appreciated.

[@stevewiles7132]

Remember the woman who found out she was Canadian, but came here as an infant? she was denied the right to run.

[@constitutionalclarion1901]

Senator Waters was disqualified, because there was no irremediable impediment to the renunciation of her foreign citizenship. She has since renounced her foreign citizenship and been re-elected to Parliament.

[@danieltynan5301]

Exactly

[@lachlanmcgowan5712]

This case is different. Australia has diplomatic relations with Canada, and has never been to war with Canada. We have established processes for dealing with Australian/Canadian dual citizens, and Senator Waters' failure to investigate her dual citizenship was negligent on her part. Australia has no strong diplomatic relations with the Taliban administration in Afghanistan because we were at war with them until recently. We therefore have no established rules for dealing with Australian/Afghan dual citizens, and furthermore from what we know about the Taliban's laws it is very likely that they will never allow any Afghan citizen to revoke citizenship. Senator Payman investigated her dual citizenship upon her nomination and found that there was no way she could be certain of her Afghan citizenship status. This satisfies the High Court's tests for dual citizenship -- she has made all reasonable steps to revoke her dual citizenship and any further movement on the matter is a question for the Afghan government, not Senator Payman.

[@peterward9446]

so was the 'kiwi' running for a senate seat in same 2022 election as Fats

[@user-zd7qo7mm6k]

@@lachlanmcgowan5712 So they bring their problems with them and infect the other countries with what they had run away from!

[@hkmonaro8153]

And of course there's the same old double standards when it comes to this particular demographic, different rules for them..

[@beniluv3250]

By double standard you mean Sharia and Commonwealth?

[@user-zv1kv6zh2m]

@@beniluv3250 What about Canon Law and Halakha? Shouldn't we worry about them too?

[@SocialDownclimber]

The video explained that there was in fact one rule for everyone and the senator is following it. Did you not watch the video you are commenting on?

[@stevewiles7132]

Any seat abandoned by a sitting member due to leaving their party, should immediately go to by-election.

[@user-zv1kv6zh2m]

The Senate doesn't do by-elections. The seat goes to the next candidate in the count. She hasn't abandoned the seat because she hasn't resigned.

[@constitutionalclarion1901]

Because Senate elections use proportional representation to elect multiple candidates, a by-election is not possible. Some people have suggested that there should be laws that require a Senator to resign if they leave their party. This leads to some tricky questions and I've done a couple of videos about them: ‘Should a defecting MP lose their seat?’ kzbin.info/www/bejne/jqrRqJydjrypbac; and ‘Anti-party-defection laws: legal and constitutional issues’ kzbin.info/www/bejne/l4mriKShbZh3b5o.

[@maxhugen]

I would not be at all surprised if her constituency would prefer Senator Payne to remain as their representative in the Senate. Unless a certain 0.4% of the Australian population mounted a well-funded smear campaign against her.

[@danieltynan5301]

​@@user-zv1kv6zh2munfortunately yes...

[@stevewiles7132]

@@user-zv1kv6zh2m So basically, this means she still has the seat but as an independent, and another from her former party will also have the seat increasing the numbers in the Senate. If she no longer has the seat, then how is it she can sill sit ? Surely, this would cause chaos if every member of the senate abandoned their party and became independent, still held their seat and another from their party was also given the seat to replace them.

[@justvisitingterra6459]

EXCELLENT EXPLANATION, THANK YOU FOR TAKING THE TIME . SATT.

[@constitutionalclarion1901]

You are welcome.

[@tonysnow9690]

Professor Twomey - Thank you so much for the explanation. You have made the situation very clear. Very much appreciated. Best wishes.

[@constitutionalclarion1901]

You are most welcome.

[@viti8347]

Fantastic analysis - thank you.

[@margyrowland]

Seems Labor wants to have it both ways

[@ytc257]

Margy 🥰Do you know Jesus is a messenger of God

[@margyrowland]

@@ytc257 He’s more than that. Are you a true Christian?

[@ytc257]

@@margyrowland but not God. He is a prophet saved by god from crucifixion. I hope y understand 🥰

[@pamelawinfield9211]

Our country, our laws.

[@user-dd9tc4zz8j]

Labor’s got no principals at all.

[@imankhandaker6103]

...or principals with principles.

[@michaeldemarillac9992]

@@imankhandaker6103 I see what you did there, very clever. haha,

[@davidmason7765]

you are assuming that the senior labor figures quoted by the Murdoch press are not senior labor figments though

[@davidwoodley1709]

Neither do the "liberals". Liberal in name only not in their policies or actions

[@robd8577]

Sure champ. Tell me again about Morrison holding multiple ministries simultaneously. And secretly.

[@user-rn4xw4ul6s]

Thank you for protecting us and waking us up to what govts are getting away with australians are fed up

[@Whatsup2today]

The Kangaroos 🦘 🦘have voted for Labour.

[@walterbolter4320]

Professor Twomey:please consider attending Regional ‘Town Hall’ meetings, discussing such political topics, for broad public benefit for Rural Residents who are effectively being roundly abused, to accomodate disingenuous political Opportunists. Quite frankly: Politics’ Is a disgraceful Dark Art.

[@DD-bx8rb]

Ah yes, Prof. Anne Twomey, the same women who tried to trick Australians with Labors 'Voice to Paliament'. In reference to the Marxist agenda she brazenly admitted "the point of the Voice is to use political pressure to influence parliament and the government before laws and decisions are made...". Twomey and other elites treated Australians with such contempt.

[@user-qu6mb2uk4q]

Well said.

[@louisebb4183]

This makes me angry ! So others are treated differently than the rest of us !If Afghanistan has ambassador in Australia so there obstacles for her to do what she needed to do .

[@vladtepes6690]

ALP bringing this up now through the media, what a coincidence.

[@maruczka1]

Most informative. Thank you.

[@ronmurray4191]

Is A Labor Senator is ok having Dual Citizen until they create waves or leave the party. Mmmmmmm another mark against Labor!

[@keithad6485]

Bob Hawke had duel citizenship, Australian and Israeli. This was reported in the media many years ago.

[@billmago7991]

Thank you Professor for my new word of the week ,"irremediable." Alas my souffle` is irremediable.😁

[@YeahNahMaybe947]

IMO If someone is voted into the senate on a LNP Greens or Labor (whatever) ticket & they resign from that party or are booted out they shouldn't be allowed to serve out the rest of their time on the cross bench as an independent. The seat should be returned to the party in this case. You can't change my mind on that.

[@AnnieGrace3]

ABSOLUTELY she should. Lots of trouble ahead if not.

[@lachlanmcgowan5712]

There are no grounds. She has attempted to divest herself of the dual citizenship and has no practical means of finalising that decision. That's all that can be done.

[@susanc4622]

We had a rush of these cases a few years ago. One MP said he hadn’t even realised he was still an Italian citizen because his mother organised it when he was a child and never told him. I don’t know about Payman’s eligibility but it always irritates me when a person elected as a representative of one party leaves that party but think they’re entitled to keep their seat. It’s happened before that a person elected as a member of one party has left the party. I think that their seat should be declared vacant and an election held.

[@constitutionalclarion1901]

I have done a couple of videos on anti-party-defection laws. See: kzbin.info/www/bejne/jqrRqJydjrypbac on 'Should a defecting MP lose their seat' and kzbin.info/www/bejne/l4mriKShbZh3b5o on anti-party-defection laws - the legal and constitutional issues.

[@vasilijawilson2463]

Thank You Very Very Much For This Video and Information we are all Need to Know Thank You Million and millions and Thank You Billions for this beautiful Beautiful Law of Australian Country This is Australia 🇦🇺 NOT Afghanistan We DO NOT NEED Afghanistan to tell AS Australian Has to Do God Blessings To Australia 🇦🇺 and KEEP Australia 🇦🇺 Free of Afghanistan or Any Countries on This Planet Earth God Save Australia 🇦🇺 and Down With GREED Political Greed We Need Honesty Honesty is the best polices in everyone life Amen 🙏

[@maxhugen]

Australia has one of the largest percentages of people who were not born here, in the world. The majority are very glad to be here, and embrace Australian life and values. That includes people from Afghanistan.

[@eaglehwk]

Thank you for the analysis 🙏

[@murrayjames3430]

Thank you for sharing your perspective with us non journos too 🙂

[@constitutionalclarion1901]

You are most welcome.

[@junaidparak2800]

Prof Anne- you a legend ! Great explanation.

[@constitutionalclarion1901]

Thanks. Good to have a positive comment in here!

[@andrewludlow2908]

Thank you! Great explanation.

[@constitutionalclarion1901]

You're most welcome.

[@mkkrupp2462]

Hopefully the ALP will learn the lesson that the best candidates for their particular philosophy and Party rules should be chosen and not solely for ‘diversity’. The Greens have also made this mistake in the past.

[@robinbrown3293]

She was chosen by rank and file members and got kicked out for casting a vote that was consistent with rank and file members official position. What you’re suggesting is that members are selected who will tow the cabinet line rather than the party line. That’s not democracy - that’s closer to Stalinism.

[@user-zd7qo7mm6k]

The Greens are useless, in their way, they are still making mistakes by supporting Hamas.

[@paulsz6194]

@@robinbrown3293well, it is a left leaning government…

[@TheNakedWombat]

@@paulsz6194 Labor isn't of the left any more. Labor introduced neo-liberalism to Australia through deregulations and privatisation. No party of the left sells off government assets. As for the Greens, they aren't socialist but centre left social democrats.

[@maxhugen]

@@paulsz6194 That's called democracy. It's never precisely balanced between left and right.

[@kurianmathew9440]

Rules for thee but not for me

[@wotizit]

Describing Israel and US perfectly! Nice

[@Turlz]

Payman is im breach of sec44 because she was not able to prove she was not a dual citizen at the time of standing. Sec44 does not contain a check list but simply states a person must not be a dual citizen.

[@constitutionalclarion1901]

As the video explains, the check-list was required by legislation enacted after the last controversy so that voters can be better informed about candidates and the qualification/disqualification before they vote. Section 44 does not require that the person fills in the checklist, but the High Court's interpretation of s 44 does provide for an exception, which I explain. The question is whether Senator Payman falls within the exception.

[@ETALAL]

​@@constitutionalclarion1901Greetings from Kirrabilli I was hoping you would cover section 15 (const.) I doubted this was a sec.44 issue Any thoughts would be appreciated, thanks It was sad to see Paymen do this. Western Australia is a dangerous place for such a person.

[@constitutionalclarion1901]

@@ETALAL Section 15 only applies if there is a casual vacancy - either because Senator Payman resigns, or because she was validly elected but later became disqualified. In such a case the vacancy is filled by the Parliament of the relevant State (in this case, Western Australia) with a person from the same party that had endorsed the outgoing Senator at the previous election (in this case, the Australian Labor Party).

[@ETALAL]

@@constitutionalclarion1901 Thx🙏

[@padstowphantom]

What a mess. Thank you for your explanation, it has helped to clarify the situation. It does annoy me that this situation keeps arising, and it is infuriating that senators can 'quit' the party and sit on the cross bench. They should leave the senate permanently.

[@coal_man]

Who is held account for breaches of the constitution.

[@scottcrawford7310]

She needs to go, should be sacked.

[@onwardstanley1998]

@@scottcrawford7310 if this had happend in any other country holey hell would have broke out by now

[@onwardstanley1998]

I cant even go back home to India and do this these people are coming hear to Australia and trying to get a way with murder

[@user-zd7qo7mm6k]

So, is she in or out? Politics is dirty.

[@thebombplayer2986]

As all good legal answers go, it depends.

[@lachlanmcgowan5712]

Currently in and likely to remain in unless she resigns of her own free will.

[@francesfalla1473]

Labor will blame Peter Dutton

[@keithad6485]

She remains a member of parliament until she resigns or there is a legal mechanism to remove her from parliament. This happened with Senator Rod Culleton not that long ago. If memory serves, he either was bankrupt which means he was not permitted to remain as a member of parliament or there was a criminal offence involved, not sure which, but no matter which one, the law did not allow him to remain as an MP. Payman has not broken any law by leaving Labor, until a much later referendum, the Constitution did not even recognise political parties.

[@theurtleproject]

always an interesting vlog… thankyou

[@probrickieexclusive]

Disqualify her

[@buryitdeep]

She wouldn't have quit without knowing she would keep getting paid.

[@swandive7290]

..fascinating ! Thank you.

[@johntreherne297]

Its a known fact in this country that you cannot hold dual citizenship in our parliament

[@graememcdonald5121]

Labor double standards are appalling

[@PandaKnight52]

What double standards? The Labor party isn't pushing for this. The Australian (a right wing anti Labor paper) said some Labor figures are suggesting she is a dual citizen. I wouldn't take their word on anything as truth.

[@lachlanmcgowan5712]

@@PandaKnight52 Bet you $5 that someone in Labor leaked this to The Australian because they knew Murdoch would report on it even though there's no merit or newsworthiness in the story.

[@blip98]

All documentation she filled out on the path to the seat should be public!

[@lachlanmcgowan5712]

@@blip98 Most of it already is. Look for the AEC candidate nomination forms.

[@josephradley3160]

Argentina has no provision for a citizen to renounce their citizenship.

[@lachlanmcgowan5712]

In that case, if there was ever an Argentinian-Australian dual citizen who wanted to sit in the Australian Parliament, according to Sykes v Cleary, that person would still be allowed to stay in Parliament as a dual citizen provided that they wrote to the Argentinian government and requested a renouncement, even if the Argentinian government did not allow it.

[@maxhugen]

There are dirty politics, and laws open to interpretation.... and occasionally there is common sense. Thumbs up for Senator Payman sticking to her morals and resigning from the ALP, rather than acquiesce to mob rule. 👍🇦🇺

[@lizgibson4171]

@@maxhugen Yes, but the Senator was voted in on a Labor ticket. What about the rest of the voters in her electorate don't they get to have a say who represents them now.

[@maxhugen]

@@lizgibson4171 You can say exactly the same about _anyone_ the party nominates to replace Payman... the voters don't get a say in that either. Besides, given Payman's steadfast morals she will most likely vote _with_ the ALP anyway, on key issues.

[@user-ko6jm7sb9t]

She should be disqualify.

[@bigman23DOTS]

Absolutely should not hold office full stop .

[@johnknight3649]

Curious, on what basis?

[@wotizit]

​@@johnknight3649 he doesn't have an answer

[@johnknight3649]

@@wotizit maybe, its a working day, give the gent / lady a chance to answer... ;-)

[@bradhughes510]

was it public knowledge that she was a dual citizen though, did the voters know this info before voting for her?

[@lachlanmcgowan5712]

Yes. The document is publicly available on the AEC website.

[@ian7033-qj9wg]

hardly anyone voted for her. She got a tiny percentage of the vote and ended up elected on preferences. She is the definition of "unrepresentative swill"

[@wotizit]

​@@ian7033-qj9wg she's great

[@NeVs-cb1oc]

@@lachlanmcgowan5712… it might very well be but… who thought to check it ?? Initially we all saw a young woman in a burqa, in the Labour Party … Nothing unusual in a multi cultural society of ours … acceptable for most people.. It turned out to be, a young woman in a burqa, with an agenda for supporting a terrorists regime, of a country far away from Australia, involved in a war of aggression against another nation … she given us to understand that her intention, right from the start was to vouch for the recognition of a terrorists state, and clearly do it from the top, through our government, by presenting her personal opinion and support for them… it backfired, happy to say, and she ended up loosing her senate position, which she had obtained by a small margin of votes, in WA… It worked against her really, and her moves showed total disrespect for our government, when she bluntly declared, she’d “walk the floor “ in parliament, and will again,if her views were not heard by the prime minister… well .. she did walk the floor…permanently..thankfully, and this is to be a lesson,for all of us, to make us aware of the dangers that can creep into our society, through radicalism that certain individuals harbour, and will try to influence us, on every chance they get !! We must resist and oppose any disruptive action, by anyone with intentions to disrupt our way of life !! Amazingly, an act of a “true snake in the grass” !!

[@user-yl8gd4pp1n]

It's public knowledge, Taliban refuses to retract her Afghan citizenship

[@SallyGilleece-ho9rl]

Regardless of a constitutional situation or Australian politics there is an influential world view that just created a political storm in England. A number of MP’s lost their seat because of their position on Palestine. Don’t expect that to not happen here.

[@glenndotarcher]

Anne - I have a simple question about S44 that I’ve raised with a few legal folks over the years - and especially back when there was a rush of MPs and Senators with New Zealand citizenship caught up in the whole S44 mess. I’ve never had a clear answer to this. Under Section 6 of the Constitution, New Zealand is defined as being a State (or even Original State) of the Commonwealth of Australia. To quote that section: “The Commonwealth shall mean the Commonwealth of Australia as established under this Act. The States shall mean such of the colonies of New South Wales, New Zealand, Queensland, Tasmania, Victoria, Western Australia, and South Australia, including the northern territory of South Australia, as for the time being are parts of the Commonwealth, and such colonies or territories as may be admitted into or established by the Commonwealth as States; and each of such parts of the Commonwealth shall be called a State. Original States shall mean such States as are parts of the Commonwealth at its establishment.” I think many of us know that when the Constitution was being framed there was consideration of NZ being part of the Commonwealth and that this inclusion is a bit of a hangover. But given this Definition includes NZ, I’m wondering how NZ can be considered as a “Foreign Power” within the context of S44 (since it can’t be both part of the Commonwealth and a Foreign Power at the same time) and why none of the MPs/Senators affected didn’t run this argument. Views??

[@thebombplayer2986]

They made a video a while back talking about the Australia acts (and stopped by a conversation about this), I can't remember the name, but I suggest going back through her library, They're all well informed videos anyways even if you don't find the answer you were looking for.

[@sandponics]

Western Australia was not included in the original draft of the constitution, it joined later, and so can secede if it wishes to.

[@glenndotarcher]

@@sandponics - I don’t believe that that is the case. For any state to secede would require the same majority as an alteration to the constitution - ie majority of states and majority of voters.

[@constitutionalclarion1901]

The answer is in the words 'as for the time being are parts of the Commonwealth'. New Zealand never became part of the Commonwealth. It is an independent country. It is therefore a foreign power. (On the UK being a foreign power - see Sue v Hill.)

[@glenndotarcher]

@@constitutionalclarion1901 I’m not sure that Sue v Hill is that relevant here given that the UK is not so explicitly mentioned in 6 as is NZ. In particular, NZ has not yet become part of the Commonwealth of Australia but neither has it categorically rejected that option. As I recall there was a very active debate about NZ joining the Commonwealth in the 80s (including some detail about if it would get 2 states or just 1) - that ultimately led the CER and no passport travel, Health and Social Welfare agreements, etc. So in the, admittedly unlikely, event that NZ wished to exercise the option, I can’t see that ‘as for the time being’ really has finished. Indeed, in constitutional time frames one might argue that it’s a work in progress.

[@wyattfamily8997]

Any Politician that resigns from the Party she stood at election for, should automatically be removed and a by election held.

[@geoffsmith82]

There is no mention of political parties in the constitution.

[@tileux]

The senate stands above any political party. No senator answers to, should answer to, or was ever intended to answer to, the prime minister - who is the head of the party in control of the lower house. Each senator is elected to represent the people of their state - not a political party. In fact it should be the other way around: no senator should be elected as a person affiliated with a political party. Also, you cannot hold "by elections" for the senate. It doesnt work like that. A vacant senate seat is filled by the person nominated by the government of the state that has the vacant seat. By convention that has always been done by appointing a person from the same political party but with so many independents now in the senate that convention is out the window. If I recall correctly, the way its done now is to eliminate the vacant senator from the election results of their election and appoint the next person who would have won a senate seat. But I cant recall precisely how that works.

[@jollyroger7624]

That is commonsense, the problem is there is no place for commonsense in Australia's political process.

[@leestone7258]

Lefties and righties cry the same tears. It's not how it is done. She may have ran on an ALP ticket but it was because she was Muslim. They wanted the Muslim vote, and she was who they voted for. They the people did not vote for ALP they voted for her. People need to get real and stop crying about nothing, if her electret disagrees with her, she will be gone. It's called democracy.

[@peterosborne3440]

@@geoffsmith82 I like your thinking mate

[@robertthomson1587]

Very eruditely explained. Thank you.

[@mkkrupp2462]

Senator Payman could have just abstained from voting couldn’t she - rather than crossing the floor. She was elected as a Labor candidate by Labor voters but she will now spend the rest of her 6 year term paid by the tax payer as an independent.

[@user-yl8gd4pp1n]

Australia is a signatory to the g'cide convention, Geneva convention, Rome statute, ICC, ICJ etc etc she shouldn't be expected to abstain

[@user-zv1kv6zh2m]

As the constitution allows.

[@mickhawkins9864]

A very concise and clear explanation of a complex problem - thank you. Sadly, it is a further example of political vindictiveness. The former party’s hierarchy would obviously be aware of and supporting this allegation. There is no ethical superiority that can be claimed by either major political party.

[@joycebaron672]

Any politician that gets voted into parliament on a political party's ticket then leaves that party should have to give up their seat, that seat should then pass to another party member afterall most of us vote for a particular party and not the individual.they can then stand as an independent at the next election. Too many jumping ship once on the gravy train.

[@constitutionalclarion1901]

I have done two videos on the consequences of MPs defecting from their party. See: ‘Should a defecting MP lose their seat?’ kzbin.info/www/bejne/jqrRqJydjrypbac; and ‘Anti-party-defection laws: legal and constitutional issues’ kzbin.info/www/bejne/l4mriKShbZh3b5o

[@MaxMitch22]

Labor should not hide behind smokescreens like this episode. The real issue is the control of a foreign power over our foreign policy, not the foreign citizenship of a single sitting member.

[@Slynsmiley]

This is a most informative presentation. Thank you!

[@constitutionalclarion1901]

You're most welcome.

[@the-flatulator]

You made me look up Irremediable!

[@stewatparkpark2933]

Try eating more roughage .

[@davidnicholson4136]

The parents are so busy squabbling and threatening divorce that they have forgotten the most important stakeholders in this dispute; the little people. Not children or leprechauns; Labor voters. The "rusted on" citizens who vote for candidates just because they represent the Labor Party. Senator Payman has not formally consulted her constituents and sought their preference in this matter.

[@maxhugen]

Those "constituents" would be more likely to descend into endless arguments that lead to no resolution. Aussies are not renown for being politically savvy.

[@davidnicholson4136]

@@maxhugen It doesn't matter if they are as dumb as a box of hammers. It is the senator's duty to consult with those constituents. They employed her to do the job she advertised at the voting booth. Any change of agenda needs to be negotiated with the employers, not hijacked because she is triggered by heritage.

[@jenzag7621]

Remember the fuss that was made about Josh Freydenberg being a dual citizen? Why wasn't there a fuss made about her and why was she allowed to enter parliament? She's still getting paid by the taxpayer. Why? Disqualify her and stop giving her our money.

[@magentamagenta1274]

@jenzag7621 💯 correct she needs the sack asap.

[@constitutionalclarion1901]

Someone did challenge Josh Frydenberg's qualification, and the challenge was lost (See Staindl v Frydenberg [2020] FCAFC 41). No one challenged Senator Payman's qualification within the 40 day period. Whether people want to challenge or not is a matter for them - but if they lose and costs are awarded against them, it is a very costly business, so not sensible unless there are strong grounds.

[@tileux]

Because you can disawbow your dual citizenship to satisfy section 44. But Payman is from afghanistan and Australia doesnt recognise the taliban as the government of afghanistan so she cant disavow her dual citizenship. In those cases the candidate just has to do they best they can to disavow their dual nationality.

[@geofftottenperthcoys9944]

She was voted in the represent locals in WA, NOT Palestinian stuff. Deserves all she gets.

[@maddyg3208]

Getting him unelected was the one good thing done by the Teals

[@TheAbeKane]

It seems like the obvious answer is to let her attempt to end her Afghanistan citizenship until successful.

[@paraprosdokian5808]

Do you ever feel like there's a great law lecturer in the sky devising ever more fantastic exam questions for us to answer? My fave was "what if the Senator's mother applied for citizenship without him knowing?" If it was a novel, the author would be criticised for his unrealistic scenarios.

[@angelinajosephinegibbs874]

Thank you

[@constitutionalclarion1901]

Glad you found it informative.

[@MatthewThomasMcGirr]

Thank you Professor for this video

[@constitutionalclarion1901]

You're most welcome.

[@jimmckie3574]

Thankyou for the clear concise interpretation and discussion, i am much better informed now

[@constitutionalclarion1901]

That's great. Thanks.

[@BlatFlattery]

Australia should not have dual citizenship.

[@kallekas8551]

Why not? It’s ok in most developed countries.

[@BlatFlattery]

@@kallekas8551 some people need to make decisions of where their loyalty lies, that’s all.

[@kallekas8551]

@@BlatFlattery I understand this. But what about kids who came with their parents to this country and they have a love for both. And have served in the militaries of both countries…not enemies.

[@keithad6485]

Be interesting to find out which party introduced the statute allowing duel citizenship.

[@kallekas8551]

@@keithad6485 Loyalties….🤣it’s not sport!

[@BDS-now]

thank you, great video

[@keithad6485]

Interesting that the Australian constitution does not recognise political parties. Until well after the 1901 Constitution became law. The word 'parties' was much later included in one particular referendum to alter the Constitution which was approved by the majority of voters in the majority of states, I guess this is why Ms Payman remains a validly elected politician even though she has rejected her party policy on at least one issue.

[@leinam4164]

Thank God.

[@samtcgan068]

Another Labor person with dual citizenship problems.?

[@YeahNahMaybe947]

Tony Abbott had dual citizenship only renounced to be eligible to for a Rhodes scholarship.

[@silvarajanvedanayagam1161]

Why would anyone have voted her in the first place?

[@MegaStooi]

Actually she only received about 1900 votes. The senate voting system Is a joke

[@cjod33]

That's rhetorical right?

[@serepax3282]

A matter of preferences, she only got 1681 direct votes.

[@greebj]

they didn't, they voted for alp

[@imankhandaker6103]

Perhaps some people think differently? Perhaps that should be banned?

[@user-nv7fe1nq8y]

Isn't that a convenient legal mess. wil be going o High Court to sort this one out. Thanks for your opinion.

[@qaharwahab7036]

Tony Abbott had dual citizenship. Why he was allowed to be prime minister?

[@constitutionalclarion1901]

He renounced his UK citizenship before being elected.

[@oftpist]

The status of the Embassy of Afghanistan is at the crux of this issue. The Afghan Ambassador in Australia was appointed by the pre-Taliban government. He is not recognised or funded by the Taliban Afghan government but has continued to operate as if he is the official representative. Presumably Australia has tolerated this arrangement because we do not recognise the Taliban as the legitimate government of Afghanistan. The Taliban government may well have an Ambassador responsible for Australia but based in another country. Either way, the status of the Afghan Ambassador in Australia is totally different to ambassadors from other countries.

[@TheNakedWombat]

Interesting video. Thank you.

[@constitutionalclarion1901]

You're welcome.

[@camb6176]

Simple make it born in Australia from Australian parents whose parents were born in Australia with no dual citizenships to qualify for Australian politics.

[@stewatparkpark2933]

Not many would pass that test .

[@user34274]

Then there would be no one eligible lol

[@lachlanmcgowan5712]

Australia is a nation of immigrants. We are a multicultual nation. Our Parliament is stronger and fairer with a diverse range of citizens in it, including recent immigrants, settlers, and indigenous people.

[@TheJimbo4123]

Actually it's totally opposite our system only works with a culturally cohesive people. Eventually with the virulent antiwhiteism factions of non-whites will form coalitions against real Australians interests.

[@Robert-xs2mv]

@@stewatparkpark2933almost non.

[@Puko82]

Interesting and informative ✅✅

[@constitutionalclarion1901]

Thanks. Much appreciated.

[@offshoremigrationagents6984]

Hold a Double Dissolution at the next Election.

[@neilgarrad4931]

Thanks

[@slypig24]

Very interesting legal matters to consider.

[@rossbaker9721]

She is dual citizen of another country.

[@lachlanmcgowan5712]

She has made all reasonable steps to divest herself of the dual citizenship. That passes the test in Sykes v Cleary.

[@pr5991]

While some may not fully grasp the difficulties faced by skilled migrants and international students in obtaining Australian residency and citizenship, it's important to recognize their significant contributions. Skilled migrants often hold multiple degrees and work diligently, paying substantial fees and taxes for many years before earning citizenship. International students also contribute greatly through their education and hard work. Given that Afghanistan is now more stable, there is a perspective that refugees from there should consider returning to help maintain Australia’s prosperity. There are concerns that boat arrivals might rely on taxpayer-funded benefits, such as Centrelink, from the moment they arrive.

[@user-gs1jb5en8i]

Couple of points: 1. Oz would not be taking in migrants if we didn't think it was beneficial - so let's not pretend we're doing them a favour 2. The number of humanitarian migrants is a tiny fraction of the overall intake. 3. A huge proportion of 'migrants' are actually 'foreign students' - who we are exploiting to prop up our tertiary education system, and as cheap labour. 4. In my opinion, the other big reason we are taking in so many migrants is to prop up the housing market. 5. Lastly - we use migrants to avoid the expense and effort of training young people. Bottom line - many sectors of Oz society benefit from the intake and exploitation of migrants. Whinging about their effect on social security is a distraction promulgated by right wing media seeking to sow social discord. We need migrants. They improve everything about the country. Long live multiculturalism. It's good to let people come and get educated if they want, but we should be funding our education system properly, and we shouldn't let the education system be used as a source of cheap labour or to get around immigration policy. We most definitely should not be inflating the housing market, suppressing wages, and overburdening services by bringing in too many people at once. But let's be totally clear - it's not migrants fault that's happening - it's some d***head already here that's doing that. How's this for a joke? Bring in too many people to prop up inflated property prices, expand markets, and keep wages low. Then sow fear and division in the population by promoting xenophobic memes against migrants and get the population to vote for the same people who have a vested interest in keeping migration high.

[@darilynadams7281]

Thku lady. It's very complicated. Just make the rule simple with payman! She's got citizenship of another country; therefore, she's out of any Govt/Parliament. Stupid Labor put her in Govt. Always against Labor since I was a kid! I didn't know who my parents voted for! We didn't talk politics!

[@SocialDownclimber]

So all you would need to do to change the government in Australia would be for a foreign power to award the ruling party citizenship, then according to your rule they must be removed from parliament. That's why we will not do it your way - its a crippling achilles heel to the nation and we would be fools for indulging it.

[@Ken-er9cq]

The most ridiculous case was Josh Frydenberg. His mother had migrated from Hungary after World War 2 but were considered stateless. More recently Hungary gave them back citizenship, which may have caused citizenship by descent to Frydenberg. Part of Labor wanted to attack while others said not to go there. In the end a private citizen took it to court and lost. The current system seems to want to avoid a similar situation where a validly elected member becomes invalid because another country grants them citizenship.

[@lizgibson4171]

@@Ken-er9cq Should absolutely be NO DUAL citizenship allowed.

[@cesargodoy2920]

as a duel citizen myself, the subject sorta hurts my feelings, but you do a good objective overview.honestly, I'm surprised the writers of the text didn't consider that many different countries have different citizenship laws .Something like "as determined by Australian Law"or "before an Australian court" might have fixed the issue.its also interesting a commonwealth examption wasn't placed like in some other places.Especially because the sovereign himself is a 15th citizen (or so] .This also raises a question I had .Is there a version of the "textualist" vs. "Orginalism " debate in Australia ? as a fun note once an Australian American ran for West Virginia State assmbely.his opponent pointed out he was a duel citizen..so the man ran with it posting billboards with kolas and kangaroo and overdoing his accent.The Australian won.

[@shellyaus]

Nationality and Citizenship Act 1948 Part 1 section 5 states " alien" means a person who is not a British subject, an Irish citizen or a protected person;

[@cesargodoy2920]

@@shellyaus oh that clears that up. In canada they just say the king is canadian

[@MrBC078]

so clear :)

[@constitutionalclarion1901]

Much appreciated.

[@australiaprisonisland9156]

I don't care for your constitution.

[@wotizit]

This stuff hurts my head

[@johnfitzpatrick2469]

I am somewhat perplexed as to why this dual citizenship issue is left sitting as a 'bullet in the revolver' by ASIO vetting AEC candidates for election. This seems to happen as soon as one 'jumps ship' in either house. 🥳📘

[@robertthomson3448]

Hello, Can you advise please? Section 44 (i) Any person who is under any acknowledgment of allegiance etc etc. Does this prevent members of parliament flying or displaying a foreign flag in an Australian Parliament? Imagine we had a referendum and sec 44 (i) was altered to read: Any person who demonstrates an allegiance, is under the Any acknowledgement of allegiance, etc etc. Would that prevent members of parliament flying or displaying a foreign flag in an Australian parliament? This is not a freedom of expression matter. Members of parliament are there to represent the electorate. So some foreign power. Thank you R. Thomson, Brisbane.

[@constitutionalclarion1901]

Flying a flag is not necessarily a sign that one has allegiance to a foreign country. Otherwise, every time flags are flown to welcome visiting heads of state, or visiting sporting teams, etc, the poor people putting up the flags would be gaining multiple allegiances!

[@user-gs1jb5en8i]

Many comments regarding a candidates party affiliation dont seem to realize that in the constitution, votes are for people not parties. The 'above' and 'below' the line thing was a convenience introduced by political parties due to mammoth candidate lists and the requirement to fill in every box numerically. It was a reform intended to bolster political party's power and not to improve representation. Its not written in the constitution. The 'above the line' system blatantly favours political parties versus independents and was fully intended to do just that. A more representative reform would have just allowed people to number their preferences to the extent they desired and leave some candidates boxes blank. 'Above the line' voting is a naked power grab by major political parties. It has no ethics or principles behind it beyond advantage to major political parties. In my opinion political parties are vehicles for megalomanical careerists and institutionalised corruption. I think these outcomes are intrinsic to the nature and operation of political parties. I invite counter examples.

[@Reaper4367]

though 'Quick and Garran' make it very Clear, leave no doubt to eligibility and possible subsequent disqualification.

[@michaelwalsh6003]

Is an embassy that has no contact with the ruling regime and cannot perform the function of an embassy, truly an embassy? Is it just a refuge for bureaucrats from a fallen regime who wish to maintain their previous status? If the “embassy”, isn’t an embassy of the government of Afghanistan then talking them is in effect the same as doing nothing. You might as well ask your accountant to process the forms for you. The real question is what is the appropriate mechanism for rescinding citizenship for that country and was that process followed? When the senator declared that they had done all they could, had they? Was it an honest declaration?

[@lachiemcomish5925]

It seems to me the situation is a little more complex than presented here. Section 44 is quite incompatible with section 49. At Federation membership issues in the House of Commons we’re strictly the preserve of the House of Commons. The privileges of the House of Representatives and Senate were set under section 49 as those of the House of Commons at the establishment of the Commonwealth. Under section 49 in 1920, the Hon Hugh Mahon MP was expelled from the House of Representatives on a vote in the House of Representatives for making “seditious and disloyal utterances" regarding British policy in Ireland. In other words membership issues were quite properly held to be the preserve of each chamber. Not the judiciary. So section 44 is an impediment to the separation of powers So what! Well section 44 disqualification powers also covers any person who is “.. subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power;..” That is pretty broad and could capture many of us. Consider the 1950 Israeli Aliah (Law of Return) which conveys privileges of entry to Israel to Jewish people and their spouses worldwide. Will Jewish people be banned from Parliament? Or the descendants of traditional owners who enjoy a right to access to land and water in many parts of the world. Frankly the best thing we could do is abolish section 44 altogether

[@WalJames]

Labor knew exactly what they were doing before the handed her a safe seat. They never expected anyone to throw heat being that she is a Muslim & the rules don't apply to her.

[@wotizit]

Here we go with the islamaphobia, c'mon James that's so 2015; Pauline get to ya? 😂

[@WalJames]

@@wotizit Go have a quick look at how the UK & France are doing hey ? Then let me know about Islamaphobia when it's too late.

[@wotizit]

​@@WalJameshow are they doing? A better example would've been Sweden but I guess your knowledge is severely limited to the mainstream media, get a mind of your own buddy

[@shellyaus]

In regards to citizenship, Uncle jim everett-purulia minamata.from Tasmania who is 81 years old is stating he is not an Australian citizen and can't be charged of trespass on his native property, can they force him to be a citizen?. And secondly a friend who was born in 1973 in QLD was sent a "subject of the Queen" certificate, soon after his birth how can this since it is after the 1948 nationality and citizenship act?, and lastly if it wasn't a problem then why in 1988 did they wish a referendum to add citizenship to our constitution?

[@peterosborne3440]

Very interesting question and eagerly await Constitutional Clarions reply.

[@stewatparkpark2933]

Queen of Australia . Now King of Australia .

[@SEamaster87]

She’s got several years to renounce her Afghani Citizenship why only try when she’s about to run? Renouncing foemr the convenience and possible perks of being elected sounds dodgy/mercenary to me. Same as countless “refugees “ who fled from their countries due to “serious” persecution ansmd once they gwt their Australian residency- the first place they visit on theur holidays were the countries they fled from.

[@user-gs1jb5en8i]

Because it's only because of S44 that it ever becomes an issue. Also don't know if huge numbers of refugees are heading back to Afghanistan or Iran on holidays after being granted refugee status in Australia.