Monthly Archives: October 2017

Three reasons why the decisions of Joyce and Nash may be difficult to challenge

The Conversation

File 20171030 17711 1p8hzgp.jpg?ixlib=rb 1.1
Can decisions made by former deputy prime minister Barnaby Joyce while he was invalidly in parliament be challenged? AAP/Mick Tsikas

Anne Twomey, University of Sydney

Now that Barnaby Joyce, Fiona Nash and three other senators have been declared invalidly elected, questions are being asked about whether close parliamentary votes still stand and decisions made by the disqualified ministers can be challenged.

As the issue has not arisen in Australia before, there is no direct judicial authority on the question. We can, however, draw some reasonable conclusions based on how the courts have dealt with analogous issues in the past.

Parliamentary votes

Over the years, quite a few MPs have been disqualified at both the Commonwealth and state levels, but no-one has ever challenged the validity of a law passed in reliance on the vote of a disqualified member.

The only Australian authority is the 1907 case of Vardon v O’Loghlin. In this case, Chief Justice Griffith and Justices Barton and Higgins stated that even though a senator was disqualified at the time of his election, “the proceedings of the Senate as a House of Parliament are not invalidated by the presence of a senator without title”.

Justice Isaacs added that while Vardon had not been validly elected, the “validity of his public acts as a senator prior to the declaration is, of course, unaffected”.

Although neither statement directly addressed the effectiveness of his vote in the house, the case has been taken as sufficient authority to suggest that past votes will stand, even though disqualified senators or MPs participated in them.

This view is supported by the general principle that a court will not interfere in the internal proceedings of parliament. Although courts will enforce “manner and form” requirements for a special majority to pass a particular type of bill, the courts will not look behind the parliamentary record of the votes, even when those records may be inaccurate.

If, therefore, anyone challenged the validity of a law on the basis that it was not passed by a majority of qualified MPs, it is most unlikely that a court would be prepared to hear the case and strike down the law.

Ministerial decisions

Section 64 of the Constitution provides that “no minister of state shall hold office for a longer period than three months unless he is or becomes a senator or a member of the House of Representatives”.

During the entirety of Joyce’s ministerial career – starting on September 18, 2013 – he was not validly a member of either house. Similarly, Nash was not validly a senator at any time during which she was assistant minister from 2013 and minister from 2015.

When each was first sworn in as a minister, and sworn in again after the July 2016 election, the three-month period would have run. But, after that, both Joyce and Nash would have been ministers invalidly.

Further reading: If High Court decides against ministers with dual citizenship, could their decisions in office be challenged?

Does this mean that the decisions they made during this period could be challenged? There are three important factors at play.


First, a person would have to have legal standing to bring a challenge. This means they would have to have a special interest in the decision, above that of the rest of the community, which goes beyond a mere intellectual or emotional interest in the matter.

For example, if the property or financial interests of a person are affected by a decision, then they may have standing.

There is uncertainty as to whether simply being an MP is enough to gain standing to challenge government decisions. This issue was raised in the case concerning the postal survey on same-sex marriage, but the High Court did not need to resolve it because the challenge failed anyway.

So, there is doubt as to whether opposition MPs would have the standing to challenge any decisions made by Nash or Joyce in their ministerial capacities.

The source of the decision-making power

Second, the decision would have to be one made by Joyce or Nash in accordance with a power conferred upon them as ministers by statute or another legal source.

The waters have been muddied by statements concerning the fact that ministerial decisions are often approved by cabinet.

The cabinet is a policymaking body. It does not have the power to give legal effect to its decisions. This is done through other bodies or persons. A decision to enact legislation is given effect by parliament. Many other decisions concerning appointments, the compulsory acquisition of property, and the making of regulations are given effect by the governor-general through the Federal Executive Council.

It is only those decisions made directly by Joyce or Nash on the basis that they were exercising a power conferred upon them in their capacity as a minister that could be challenged.

Timing and the de facto officer doctrine

The third issue concerns timing and the possible application of the “de facto officer” doctrine.

This is a common law doctrine that protects the validity of decisions made by a person who is clothed with the authority of an office, but is later found not to have been validly appointed to it.

If that person acts under the “colour” of the office, there is public acceptance of that authority and the government holds out that person as having the authority to exercise that power, then the doctrine is likely to give a measure of protection to exercises of that power, if they were otherwise validly made.

Further reading: The High Court sticks to the letter of the law on the ‘citizenship seven’

The doctrine is directed at protecting those who rely on the decisions in good faith, rather than protecting the decision-maker. The policy behind it is to avoid the chaos that might ensue if decisions are invalidated due to a defect in the appointment of the decision-maker.

For example, when the governor-general of the Solomon Islands was held to have been invalidly appointed as he did not meet the required qualifications, the High Court of the Solomon Islands relied on the de facto officer doctrine to uphold his actions, including the dissolution of parliament and the appointment of ministers.

In 1938, Owen Dixon wrote that there “are questions outstanding as to the limits of this principle or the conditions controlling its operation”. That remains true today. One of those questions is whether the doctrine operates when the disqualification of the office-holder is a result of a breach of the Constitution.

In 2000, the High Court unanimously held in Bond v The Queen that a question arising under the Constitution as to the powers exercisable by an officer of the Commonwealth “cannot be resolved by ignoring the alleged want of power on some basis of colourable or ostensible authority”.

The doctrine also ceases to apply when the mantle of authority is removed by the public expression of doubt as to the validity of the office of the decision-maker.

Accordingly, the decisions made by Joyce and Nash that would be most vulnerable to challenge are those made after they were referred to the Court of Disputed Returns, due to doubts as to the validity of their election to parliament. One would expect, however, that they were sufficiently prudent not to make contentious decisions during that period.

Where does this leave us?

It is most unlikely that any challenge to a law on the basis of votes in parliament by disqualified members would succeed in the courts.

There is a greater risk that a challenge to a ministerial decision, made by a disqualified MP when he or she did not validly hold a ministerial office, could be successfully challenged. But this would depend upon the action being brought by individuals or corporations that have a sufficient interest to attract standing and whether the decision was actually made by the disqualified minister (as opposed to another body, such as the Federal Executive Council).

It would also depend on the extent to which the de facto officers doctrine applied.

The ConversationIt may be the case that no decisions fall into this category, despite the feverish speculation. We can only wait and see.

Anne Twomey, Professor of Constitutional Law, University of Sydney

This article was originally published on The Conversation. (Reblogged by permission). Read the original article.

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The handy-dandy Aslan/Affleck refuter

Why Evolution Is True

In the past week or so we’ve heard Ben Affleck defend Islam against the criticisms of Sam Harris and Bill Maher, with Affleck (and Nicholas Kristof) claiming that many Muslim-majority countries are—unlike Saudia Arabia and Iran—benign, even supportive of women’s rights.  And right before that, Muslim apologist Reza Aslan went on CNN to make the same points, also arguing that female genital mutilation (FGM) is not an Islamic practice, but an African practice (sometimes done by Christians), and cannot in any sense be pinned on his religion.

In general, all of this is Islam-osculation reflects Americans’ desire to bend over backwards to avoid offending Muslims. Part of it is fear of the misguided accusation of “Islamophobia;” part of it is reverse racism (although Islam is not a race): the notion that Muslims should be held to a lower standard of behavior than people in the West; and part of it is simple fear of…

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Sam Harris versus Reza Aslan

Why Evolution Is True

Here we have two clips demonstrating the increasing polarization between Sam Harris and Reza Aslan over a year—or rather, the increasing hostility of Aslan. The first clip is undated, though because Harris cites the Pew Poll on the attitudes of Muslims, which was published in 2013, it would seem to be around then, which means Aslan’s hair got a lot grayer in one year. (This is part of a much longer discussion between Harris and Aslan that you can see here.)

Harris seems fairly conciliatory, asserting that his (Harris’s) rhetorical style is not suited to convincing Muslims to temper their faith (“I’m not a diplomat”); rather, that tempering must come from people like Aslan.

In response, what does Aslan do? At 2:41, he simply asserts his “expertise,” saying that because he doesn’t write books on neuroscience, Harris should shut up about Islam, implying he knows nothing about it…

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30 Dialects of the English language in the UK

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On Gettier Problems

by Tim Harding

Gettier problems or cases are named in honor of the American philosopher Edmund Gettier, who discovered them in 1963. They function as challenges to the philosophical tradition of defining knowledge as justified true belief . The problems are actual or possible situations in which someone has a belief that is both true and well supported by evidence, yet which fails to be knowledge (Hetherington 2017:1).

The traditional ‘justified true belief’ (JTB) account of knowledge is comprised of three conditions as follows: S knows P if and only if (i) P is true, (ii) S believes that P is true, and (iii) S is justified in believing that P is true. In his discussion of this account of knowledge, Gettier (1963:192) begins by noting two points.  His first point is that it is possible for a person to be justified in believing a proposition which is in fact false (for which he later gives examples).  His second point is that if a person is justified in believing any proposition P, and that proposition P entails another proposition Q, and that if the person accepts that Q is deduced from P, then the person is justified in believing Q.

Gettier (1963: 192-193) provides two counterexamples to show that it is possible meet these three JTB conditions and yet not know P.  I think that his second counterexample demonstrates both of his two opening points better than his first counterexample.  The proposition (f) ‘Jones owns a Ford’ entails the disjunctive proposition (h) ‘Either Jones owns a Ford or Brown is in Barcelona’.  In accordance with Gettier’s first opening point, Smith is justified in believing (f) even if it is false, because Smith did not know that Jones was lying about his ownership of the Ford. Thus in accordance with Gettier’s second opening point, if Smith is justified in believing (f), he is justified in believing (h).  So if (f) is false, (h) could still be true by chance, if unbeknown to Smith Brown just happens to be in Barcelona.  So Smith was justified in believing (h) yet he did not know (h).  Yet proposition (h) meets each of the three JTB conditions.  So I think that this counterexample shows that Gettier’s two opening points are both plausible.

Zagzebski (1994: 207) notes that Gettier problems arise ‘when it is only by chance that a justified true belief is true’, as in the case of Brown happening to be in Barcelona in the Gettier counterexample discussed above. She argues that ‘since justification does not guarantee truth, it is possible for there to be a break in the connection between justification and truth, but for that connection to be regained by chance’ (Zagzebski 1994: 207).  Gettier’s counterexample created a problem for ‘justified true belief’ because an accident of bad luck (Jones lying about owning a Ford) was cancelled out by an accident of good luck (Brown happening to be in Barcelona), thus preserving both the truth of the disjunction (h) ‘Either Jones owns a Ford or Brown is in Barcelona’ and Smith’s justification for believing the truth of (h).

I think this break in the connection between justification and truth is what Zagzebski (1994: 209) means when she later refers to the concept of knowledge closely connecting the justification and the truth component of a given belief, but permitting some degree of independence between them.  In a later essay (1999: 101), Zagzebski explains that ‘Gettier problems arise for any definition in which knowledge is true belief plus something else that is closely connected with the truth but does not entail it’.  She argues that all that is necessary is that there be a small gap or independence the between truth and justification components of knowledge (Zagzebski (1999: 101), as shown in Gettier’s abovementioned counterexample.  It follows that Gettier problems can be avoided if there is no degree of independence at all between the truth and the justification of a belief (Zagzebski (1994: 211).

Zagzebski (1994: 209-210) describes a general rule for generating Gettier cases. As long as there is a small degree of independence referred to in (ii) above, we can construct Gettier cases by the following procedure.  We start with a case of justified false belief, where the falsity of the belief is due to some element of luck (such as Jones lying about owning a Ford).  Now amend the case by adding another element of luck (such as Brown happening to be in Barcelona) which makes the belief (in this case a disjunction) true after all.  So the ‘belief’ that Zagzebski is referring to here is any justified false belief where the falsity is by chance.


Gettier, E., (1963) ‘Is Justified True Belief Knowledge’ in Sosa, E., Kim, J., Fantl, J., and McGrath. M. Epistemology : An Anthology 2nd edition. Carlton, Blackwell. 192-193.

Hetherington, S., ‘Gettier Problems’, The Internet Encyclopedia of Philosophy, ISSN 2161-0002,, 29 October 2017.

Zagzebski, L., (1994) ‘The Inescapability of Gettier Problems’ in Sosa, E., Kim, J., Fantl, J., and McGrath. M. Epistemology : An Anthology 2nd edition. Carlton, Blackwell. 207-212.

Zagzebski, L., (1999) ‘What is Knowledge?’ in Greco, J. and Sosa, E., The Blackwell Guide to Epistemology. Carlton, Blackwell. 92-116.


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The High Court sticks to the letter of the law on the ‘citizenship seven’

The Conversation

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The High Court has ruled Scott Ludlam, Larissa Waters, Fiona Nash, Barnaby Joyce and Malcolm Roberts ineligible to have stood for parliament at the 2016 election.
AAP/Shutterstock/The Conversation, CC BY-ND

Gabrielle Appleby, UNSW

Today, the High Court announced the fate of the “citizenship seven”, with only senators Nick Xenophon and Matt Canavan surviving the legal ordeal. (Although the victory will be of limited relevance to Xenophon, who has in the meantime announced his resignation from the Senate to return to state politics in South Australia).

In the case, the High Court, acting as the Court of Disputed Returns, found that four of the six senators referred to it, and the only member of the House of Representatives (Barnaby Joyce), were disqualified under Section 44 of the Constitution. With the exception of Xenophon and Canavan, it was found that the MPs had never been validly elected.

The court has declared all five seats vacant. The senators will be replaced through a recount from the 2016 election. The House of Representative seat of New England will go to a by-election on December 2, which Joyce will contest.

In the meantime, Labor has refused to offer the Coalition a pair for Joyce’s absence, and the Coalition will maintain government on a knife-edge, with 74 seats plus the support of the crossbench, and, if necessary, the Speaker’s casting vote.

Leaving to one side the immediate political consequences of the decision, what did the High Court say about the interpretation of the restriction on foreign citizens running for parliament in Section 44? And is this the last time we will have to think about the matter?

The possible interpretations of Section 44

The crux of the constitutional case was the interpretation of Section 44 of the Constitution – specifically sub-section (i). That, relevantly, provides:

Any person who … is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.

Importantly, if a person is found to be in breach of Section 44 at the time they nominated for election, they will never have been validly elected.

The High Court has held that if a person has never been validly elected, their parliamentary votes during the time they purported to sit would still be valid.

However, questions have been raised as to the validity of the decisions of ministers who were not validly elected. This means there are possibly further unresolved issues around the validity of decisions made by Joyce and Fiona Nash, who, unlike Canavan, did not step down from their ministerial posts while the High Court made its determination.

Another important point that the court has previously clarified is that foreign citizenship is determined according to the law of the foreign state concerned.

None of the interpretations that were urged by the parties on the High Court were strictly literal readings of the words “citizen of a foreign power”. All the parties accepted that there had to be some level of flexibility, allowing a person who was technically a foreign citizen to nonetheless be able to run for parliament.

The real argument in the case, then, was how much flexibility could be read into the section.

The reason all the parties accepted that there had to be some flexibility in the words, was that the High Court had held as much in a 1992 decision of Sykes v Cleary. Relevantly, this case did not concern people who were unaware of their foreign citizenship, and so did not directly address the main point that was in issue for the citizenship seven.

Rather, the case stood for the proposition that a person may be a dual citizen and not disqualified under Section 44 if that person has taken “reasonable steps to renounce” their foreign nationality.

In the course of his dissenting judgment, however, Justice Deane made a comment that the provision should really only apply to cases “where the relevant status, rights or privileges have been sought, accepted, asserted or acquiesced in by the person concerned”. In this way, Deane suggested there was a mental element to being in breach of the provision.

Many of the interpretations urged on the court drew on this idea. They ranged from requiring voluntary retention or acquisition of citizenship or requiring actual knowledge of foreign citizenship, to a test of whether a person was on sufficient “notice” to check their citizenship status, to a need for the person to have real allegiance to the foreign power.

The High Court opts for certainty

The High Court opted for an interpretation of the Constitution that promotes certainty for future cases.

In a (rare) unanimous decision, it adopted a reading that, as far as possible, adhered to the ordinary and natural meaning of the words. It accepted that the literal meaning would be adopted, with the only exceptions those that had been established in Sykes v Cleary.

The court refused to read further exceptions into the provision based on knowledge, notice or actual allegiance. It said to do so would import a worrying element of uncertainty into the provision, which would be “apt to undermine stable representative government”.

The application to the ‘citizenship seven’

Once the High Court resolved the interpretation of Section 44, it had to apply this interpretation to each of the citizenship seven. The only two MPs who they found not to have fallen foul of this strict reading were Xenophon and Canavan.

Xenophon had what was referred to as “British overseas citizenship”. This had been inherited through his father, who migrated from Cyprus while it was still a British territory. The court accepted that Xenophon, while technically a type of British “citizen”, held no right of entry or right of abode, and thus he did not have “citizenship” for the purposes of Section 44.

Canavan’s facts were more complicated. His alleged citizenship turned on a change in Italian citizenship law that occurred because of a decision of the Italian Constitutional Court when he was two. The court received expert evidence on the Italian legal position, and it ultimately accepted that they could not be satisfied that Canavan was, in fact, a citizen of Italy.

Each of the other senators and Joyce accepted that there were, technically, citizens of a foreign country at the time of their nomination. But they argued they had not known of this when they nominated for parliament. The court’s strict interpretation of Section 44 offered them no comfort.

Is this the end of the parliament’s Section 44 dramas?

In the immediate aftermath of the High Court’s decision, the government has announced it will refer the decision to the Joint Standing Committee on Electoral Matters to discuss, among other things, possible amendments to Section 44.

The issue, it would seem, is no longer the uncertainty around whether a person is or is not disqualified. Because of the strictness of the High Court’s interpretation, all potential parliamentarians are on notice to check thoroughly their citizenship status. Part of the referral to the committee is to investigate ways to “minimise the risk of candidates being in breach of Section 44”.

Rather, the more fundamental issue is now whether this is a desirable state of affairs given the large numbers of Australian citizens who are dual nationals, and who may not wish to renounce their citizenship to run for parliament. Thus, we as a nation stand to lose potential parliamentarians by excluding a pool of people that is likely to grow, not diminish.

Further, there is another question as to whether Section 44, when interpreted in this way, is apt to achieve its purpose. The High Court accepted that the purpose of Section 44 was to ensure that MPs do not have a split allegiance or loyalty.

The ConversationMany might argue that this purpose is still an important one. Even if that is accepted, it would seem that denial of eligibility to a dual national is a particularly blunt instrument to achieve it. On the one hand, it captures many people who do not even know they are dual citizens. On the other hand, the relatively easy step (in most cases) of renouncement means that those people who do have a split allegiance, but who want to run for parliament, have only to fulfil these formalities to do so.

Gabrielle Appleby, Associate Professor, UNSW Law School, UNSW

This article was originally published on The Conversation. (Reblogged by permission). Read the original article.

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Trial by Tandem, by Alan McCulloch

I knew Alan McCulloch and was quite fond of him.

ANZ LitLovers LitBlog

The moment when I stood awestruck in front of Trajan’s Column in the V&A in London remains etched in my memory forever.  It wasn’t even the real thing, it was a copy that had been made for students of the arts and the classics – and because of the vast size of the original in Rome, the part that stopped me in my tracks was only one of two halves of it.  (See here). But for me, fresh from the Antipodes on my first trip home to my birthplace after decades away, the sight of something I had studied in detail at university but only ever seen in books, was stunning.  For any Australian who’s interested in art, there is always an unforgettable moment somewhere in Europe where the sight of the artwork known only from books is neatly summed up in the foreword* to Alan McCulloch’s Trial by Tandem:

To him…

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The bird-eating fish: now online

Why Evolution Is True

Five days ago I put up some information about and the trailer for the new BBC series”Blue Planet II”, narrated by David Attenborough and starting this Sunday from 8-9 UK time. In my post I much regretted the prequel not showing one amazing finding that the Torygraph singled out when describing the show:

Among the most astonishing discoveries was made in the Seychelles where filmmakers found that predatory Giant Trevally fish leap into the air, to grab sooty terns on the wing.

“A fish that launches itself, missile-like, to take birds from the air, sounded too extraordinary to be true,” said Miles Barton, Producer for the Coast episode.

“Despite it being a fisherman’s tale there was no photographic evidence to back it up. I haven’t been out on a shoot in 20 years where I haven’t had at least a still picture of the behaviour to go on. So I…

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More dumb claims that environmental epigenetics will completely revise our view of evolution

Why Evolution Is True

There’s an interesting new paper out on the genetic basis of eye loss in cave fish, reported in a manuscript in biorxiv (not yet peer reviewed) by Aniket Gore et al. (reference and free download at bottom. ) It’s also summarized by New Scientist in the online article below (click on screenshot to go to article), as well as in a copy of the magazine’s paper issue, which I saw in Cambridge.  I’ll briefly summarize the paper, but what interested me at first was how New Scientist dealt with it.

The original title in the paper journal was “Blind cavefish’s strange evolution”, but now it’s this online (click on screenshot to go there):

That’s not much of a difference. What is different is how they sell the result in the paper version versus the online version, which I suspect came later (or was revised).  The paper version says this (h/t to…

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Catalonian parliament votes for Catalonia to leave Spain

Why Evolution Is True

I feared this would happen but didn’t really think it would. According to CNN, Catalonia’s regional parliament voted today, almost unanimously, to split from Spain. The vote was 70 in favor, 10 against, and 2 not voting; the motion was “to form the Catalan Republic as an independent and sovereign state.” The opposition party, however, left the chamber before the vote.

This is a crisis of the highest order, as the Spanish government has vowed to quash the move. As you know, there was a referendum in Catalonia on October 1 when, defying the Spanish government, which tried to repress the voting, the Catalan people voted to split from Spain. Since the voting was disorganized and disrupted by Spanish police, and many opponents didn’t vote, the results aren’t definitive. And even if they were, one wonders if Catalonia really can legally vote to leave Spain and form its own country…

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