Frydenberg & Dutton skate on s44 thin ice — pursued by pensioner on electric bike

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Investigations editor Ross Jones outlines just how much trouble pensioners can cause our Federal parliamentarians, particularly IA contributor Tony Magrathea, who campaigns against MPs lying about their ancestry. 

PENSIONERS HAVE way too much time on their hands. 

Time, if they have the inclination, to pen letters to the papers about what a bunch of unfair skinflints populate the government, or vent on Facebook so their entire extended family knows how much the government has stiffed them.

Some, though, prefer to trek through the arcane and occasionally occult rules of the parliamentary game with the sole intent of identifying any gap big enough for politicians of hubris to fall through. Just for fun.

In this regard, IA’s favourite pensioner, hands down, is Tony Magrathea. A search through IA will show Tony has, for years, waged a one-man campaign against politicians lying about their ancestry. 

While Tony wasn’t responsible for causing the recent s44 constitutional mayhem, which blew away politicians of all stripes, including, at least temporarily, such luminaries as the deputy PM (which, by the way, is not a title mentioned in the Constitution), he was certainly part of the zeitgeist.

But now Tony has had a tangible win, one that is his own — and what a sweet victory it was. Magrathea sued One Nation Senator Malcolm Roberts under the Common Informers (Parliamentary Disqualifications) Act 1975 and, much to everyone’s surprise, as it had never been done before, he was successful.

From the Guardian (12 July, 2019):

‘In September 2017, before the High Court ruling on the eligibility of Malcolm Roberts, blogger Tony Magrathea intiated a High Court action alleging that Roberts had sat in the Senate while disqualified, contrary to the Common Informers Act. On 24 June 2019, the High Court found the allegation proved and ordered Roberts to pay a penalty of $6,000 to Magrathea.’

The $6,000 was because:

‘A person found to be ineligible is liable for a single payment of $200 for sitting in Parliament on or before the day they received notice of the suit challenging their eligibility, and a $200 payment for every day they sit in Parliament after receiving notice of the suit.’

Malcolm racked up $6,000 worth of ineligibility, plus he has had to meet his own legal fees, which, as many people see Malcolm coming, could be anything.

Tony Magrathea, on the other hand, got his legals pro bono. 

According to Tony:

I asked nearly all of the major legal companies in Queensland to take on the case, but they all seemed terrified of upsetting any politician. I drew up my own thoughts on the matter and spoke unofficially with Clem van der Weegen, who had stood as a Palmer candidate in 2013 and we had tweeted each other at that time. He had a bit of a political bone in his body and suggested I get a lawyer to represent me in discussions with him, which is the proper legal way of doing things.


Roweena Ferral in Caloundra took on my case and the rest is judicial history. The first to successfully put and win a Common Informers (Parliamentary Disqualifications) Act case.

Tony says he and his wife are going to buy electric bikes with the proceeds.

But that might not be the end of the s44 fiasco. 

On 10 July 2019, Channel Seven reported:

“Legal academics in Western Australia have put the Constitution under the microscope and concluded that 26 MPs and senators may fall foul of the nightmarish Section 44(i).”

In the University of Western Australia Law Review (Vol 45(1), p196), academics Hussein Al Asedy and Lorraine Finlay begin, by stating:

‘This article discusses a number of unexplored aspects of section 44(i) and highlights some potential scenarios that may arise. In particular, the paper explores the possibility that as many as 26 Parliamentarians in the 45th Australian Parliament may be disqualified because of their status as Commonwealth citizens with the right of abode in the United Kingdom.’ 

According to Hussein and Finlay:

‘While many Australians perhaps hoped that multiple High Court decisions and resulting by-elections would mean that the country could put the “parliamentary eligibility crisis” behind it, instead we seem to have only scratched the surface.’

Independent researcher and freelance journalist William Summers, who pays attention to these matters, told IA:

Any registered voter can challenge a potentially ineligible senator in their state, so it strikes me that Malcolm Roberts would be a prime candidate for a challenge. (No senators fall foul of this in Victoria, so I can't challenge myself.) It does require a $500 deposit and potential costs, although I don't think this would be an issue for somebody to crowdfund if they challenged Malcolm Roberts, for example, even if they got hit with a huge bill.


I personally think it's an important issue and needs to be tested in the High Court. But I'm not in a position to do a lot about it. Not saying they will definitely get thrown out, but I think there is a chance, as, by the letter of the law, they should not be there. Even if there is only a 10 per cent chance of them being booted, that would be a bigger constitutional crisis than the previous s44 issue, with around 30 MPs and senators being struck out.

I think it would be a democratic tragedy to get through the election challenge period (which last until the end of July) and never have this tested by the Court. Unless we have a referendum to change the rules, it will have to come to a head eventually.

Summers’ blog can be found here: williamsummers.blog.

Apart from this "right of abode" hole, which may yet swallow more "ineligibles", Tony Magrathea pointed out that Dutton and Frydenberg are also on shaky ground, albeit for different reasons.

In regards to Peter Dutton, Magrathea notes:

Mr Dutton failed to mention his family trust in his qualifications check list.


He did tell the world he had renounced his family trust and he is no longer a beneficiary of it, but the Constitution says in s44(v) no MP may have 'any direct or indirect pecuniary interest in any agreement with the Public Service of the Commonwealth', meaning the indirect benefit his wife and children receive as beneficiaries of this family trust, which receives monies from the Commonwealth, puts Dutton in breach of the Constitution.


Failing to declare this means he has signed a false declaration to nominate for Parliament.

Dutton’s most recent Register of Members’ interests can be found here

And then there's Josh Frydenberg:

It is apparent Frydenberg was less than totally honest when he completed his nomination form for the 2019 election. On the form, Josh reckons his mum was rendered stateless in 1948 due to the Holocaust, but Magrathea dug up a couple of documents showing this claim to be untrue.

One document, completed in Vienna in 1950, notes Erika Strausz, Josh’s mum, along with her parents and siblings, were Hungarian citizens. Her immigration papers to Australia in 1951 also note she and her family as Hungarian.

Of course, Labor have a few problems of their own in this farce.

That's because of the old "right of abode" chestnut, as Summers pointed out in his blog:

‘Bill Shorten could theoretically stand for election to Westminster and even become Britain’s prime minister.’

As Summers noted:

‘Crazier things have happened in politics.’

Investigations editor Ross Jones is a licensed private enquiry agent the author of 'Ashbygate: The Plot to Destroy Australia's Speaker'. You can follow Ross on Twitter @RPZJones.

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