Section 44 of the Constitution

Current Issues

Section 44 of the Constitution

E-Brief: Online Only issued March 2004;

Ian Holland

Politics and Public Administration Group

Introduction

On 10 May 2002, Senator Nigel Scullion wrote to the President of the Senate identifying the possibility that a contractual relationship between his family company and the Commonwealth might put him in breach of section 44(v.) of the Constitution, making him ineligible to sit as a Senator (see the discussion in the Senate Debates of 14 May 2002)[1]. The Senate however has proven reluctant to deal with the case. It took 16 months for the Senate even to decide to seek external legal advice (see Senate Debates of 18 September 2003, p. 15532). It was another five months before the legal advice was tabled in the Senate, which concluded that Senator Scullion had avoided breaching section 44. As Senator Ray remarked on the day the advice was tabled, this may have been a matter of some good luck on Senator Scullion's part.

This E-Brief outlines how section 44 of the Constitution works and why cases like that of Senator Scullion seem to arise so regularly.

What is Section 44?

Section 44 of the Constitution sets out restrictions on who can be a candidate for Federal parliament. In full it reads:

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.

But sub-section iv. does not apply to the office of any of the Queen s Ministers of State for the Commonwealth, or of any of the Queen s Ministers for a State, or to the receipt of pay, half pay, or a pension, by any person as an officer or member of the Queen s navy or army, or to the receipt of pay as an officer or member of the naval or military forces of the Commonwealth by any person whose services are not wholly employed by the Commonwealth.

The section operates in conjunction with several other elements of the Constitution and Commonwealth legislation to define who can stand for parliament, as well as conditions under which a seat may be declared vacant. The main other provisions are:

  • sections 16 and 34 of the Constitution, which set down the qualifications of senators and members, until the Parliament otherwise provides.
  • Section 43, which provides that a member of either House shall be incapable of being chosen or sitting as a member of the other House.
  • section 45 of the Constitution, which specifies the circumstances under which a Member or Senator s seat will be declared vacant. It includes any situation where a Senator or Member becomes subject to any of the elements of section 44, above
  • section 93 of the Commonwealth Electoral Act 1918, which sets out who is entitled to vote.
  • section 163 of the Commonwealth Electoral Act, which basically states that a person who is entitled to vote under section 93 is therefore entitled to be a candidate at an election.
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Legal Disputes under Section 44

There are at least three ways the High Court (sitting either as the High Court, or as the Court of Disputed Returns under the Commonwealth Electoral Act 1918) might come to hear a case concerning the qualification or disqualification of a candidate for federal parliament. See Sarah O Brien, Dual citizenship, foreign allegiance and s. 44(i) of the Australian Constitution Background Papers, no. 29, Parliamentary Library, 1992. A case can be initiated by a candidate or voter, through a petition under the Commonwealth Electoral Act, disputing the result. Parliament can put a question before the High Court regarding the validity of someone s election. It is also possible that any person may seek enforcement of a penalty against a person who has taken a seat in the parliament in breach of the Constitution or electoral act. This right to sue is created by the Common Informers (Parliamentary Disqualifications) Act 1975. The first two of these approaches have both been used successfully in the last two decades (for details, see below).

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The Effects of Section 44

Section 44 places significant restrictions on the eligibility of Australians to stand for parliament. However, the effects of section 44 are seldom clear cut. The Australian Electoral Commission thus encourages anyone potentially affected to seek their own legal advice. The Commission outlines the relevant issues in its Electoral Backgrounder No. 13, on Constitutional Disqualifications.

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Section 44 Generally

John Kalokerinos, in his paper published by the Department of the Senate, Who May Sit? An Examination of the Parliamentary Disqualification Provisions of the Commonwealth Constitution, outlines problems associated with all of the elements of section 44. Gerard Carney s book Members of Parliament: Law and Ethics also discusses all aspects of the 'operation of section 44.[2] The Parliamentary Library paper by Bob Bennett, Candidates, Members and the Constitution, also discusses the range of issues associated with this constitutional provision.

44(i.)

It is generally considered that people with dual citizenship cannot stand for parliament, because of subsection (i.). Sarah O Brien s Parliamentary Library publication, Dual citizenship, foreign allegiance and s. 44(i) of the Australian Constitution, discusses in detail the operation of section 44 as it apples to dual citizenship and foreign allegiance .

44(ii.)

Ian Holland s Parliamentary Library publication, Crime and Candidacy, discusses potential problems with the operation of subsection (ii.). Amongst other issues, it makes federal electoral disqualifications dependent on the sentencing provisions in the laws of each state and territory.

44(iv.)

All public servants (both federal and state) are regarded as excluded by subsection (iv.). One measure that has been put in place to try and deal with this is to give public servants a legislated right of return to their jobs, if they stand unsuccessfully as candidates (see for example, section 32 of the Public Service Act 1999 (Cwlth)). Areas of uncertainty include whether office of profit under the crown is a term that would prevent local government councillors, or local government employees, from standing for federal office. This issue is discussed in the Parliamentary Library publication, Candidacy of Local Councillors for Federal Office.

44(v.)

Section 44(v.) also presents problems. This section has been examined by the High Court, sitting as the Court of Disputed Returns, on only one occasion, when Barwick CJ, sitting alone in 1975, examined the case of the election of Senator Webster. That judgment, In Re Webster (1975)132 CLR 270, has had the effect of construing section 44(v.) so narrowly as for it to have almost no effect and has been extensively criticised. See, for example, the speech by constitutional lawyer Gerard Carney, The High Court on the Constitutionalism of Electoral Law, and the paper by Bob Bennett, Candidates, Members and the Constitution.

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Prominent Recent Cases

There have been four prominent court cases in recent years that have resulted in the disqualification of candidates elected to federal parliament:

  • Robert Wood was elected in 1987 to take his seat in the Senate in 1988. The High Court, in its decision In Re Wood ((1988)167 CLR 145), declared Wood s election to be invalid, as he was not an Australian citizen at the time of his election. This case should not be confused with an unsuccessful attempt by another candidate at the same election, Mrs Elaine Nile, to have Wood s election invalidated on various grounds, including an alleged breach of sections 44(ii.) and (iii.) of the Constitution. See Elaine Nile v Robert Wood [1987] HCA 63
  • Phil Cleary was elected to the House of Representatives seat of Wills in a by-election in 1992. His election was challenged in the High Court. The Court in its 1992 decision, Sykes v Cleary and others(1992)176 CLR 77, found that he was not qualified to be a member because, as a Victorian school teacher, he held an office of profit under the Crown. This was notwithstanding his being on leave without pay at the time. The case is discussed in detail in the Parliamentary Library publication, Office of profit under the Crown and Membership of the Commonwealth Parliament.
  • Jackie Kelly was elected to the seat of Lindsay in the House of Representatives in the 1996 election. Her election was challenged in the High Court. As a result of the challenge, Ms Kelly accepted that her election was invalid because she had been an officer on the Royal Australian Air Force at the time of her nomination (though not on the date the election was held). This constituted an office of profit under the crown . There are further details in the Court s 1996 decision, Free v Kelly (1996)185 CLR 296.[3]
  • Heather Hill was elected to the Senate in 1998. Her election was challenged in the High Court on the grounds that she held dual citizenship of Australia and the United Kingdom. The High Court in its 1999 decision, Sue v Hill ([1999] HCA 30), agreed that the dual citizenship made Heather Hill s election invalid because it contravened section 44(i.) of the Constitution.

There was also debate about the case of Senator Jeannie Ferris. Ms Ferris was elected as a Senator for South Australia in the 1996 election. Though elected in March, as an incoming Senator she would not take her seat until 1 July of that year. During the intervening period she did some work for Senator Nick Minchin. ALP Senators argued that this put her in breach of section 44 of the Constitution. The issue was sparked by a question without notice asked by Senator Colston on 9 May 1996. The extensive debate in the Senate on this issue (see Senate Hansards of 20, 21, 22, 23 May and 27, 28 and 29 May and 28 June) was followed by Senator Ferris resigning shortly after taking office, then being appointed to the resulting vacancy by the South Australian Parliament.

As Bob Bennett has pointed out in his Parliamentary Library paper Candidates, Members and the Constitution, there is clear evidence that the effects of section 44 are not generally those that were intended. Discussing the cases of both Phil Cleary and Jackie Kelly, he states:

The subsequent re-election of Cleary and Kelly with enhanced majorities after their respective removals suggests that the electorate may also see the existing disqualification provisions as operating at times in an unduly technical manner.

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Proposals to Change Section 44

Section 44 has been the topic of regular review and debate. In 1980, the Senate referred constitutional qualification and disqualification issues to its Standing Committee on Constitutional and Legal Affairs. The Committee reported in 1981. Its report, The Constitutional Qualifications of Members of Parliament recommended that every one of the five subsections of section 44 be either amended or deleted.[4]

The Australian Democrats have on four separate occasions proposed bills to address the perceived limitations of section 44, but none has been fully debated. These Bills were:

The Constitutional Commission also considered the issue in the late 1980s. It recommended extensive reform of the qualification and disqualification provisions of the Constitution (see Chapter 4 of Volume One of the Final Report of the Constitutional Commission). Its recommendations were by and large similar to those of the 1981 Committee report, and to those suggested later by the House of Representatives Standing Committee and by Senator Bob Brown (see below).

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1996 House of Representatives Standing Committee Report

The House of Representatives Standing Committee on Legal and Constitutional Affairs conducted an Inquiry in 1996. The report was Aspects of Section 44 of the Australian Constitution: Subsections 44(i.) and (iv.). The key recommendations of that report were recommendation 2:

The Committee recommends that a referendum be held to make the following changes to the constitution:

delete subsection 44(i.)

insert a new provision requiring candidates and members of parliament tobe Australian citizens

empower parliament to enact legislation determining the grounds for

disqualification of members of parliament in relation to foreign allegiance.

and recommendation 3:

The Committee recommends that subsection 44(iv.) be deleted and new provisions be inserted in the constitution.

One provision should require a person who holds a judicial office under the Crown in right of the Commonwealth or a state or a territory to resign from the office before he or she nominates for election to the federal parliament.

Under the second provision certain other public offices, specified by the parliament, would be automatically declared vacant if the occupant of any such office nominated for election to the Senate or the House of Representatives. Under the third provision certain other public offices, specified by the parliament, would be automatically declared vacant if the occupant of any such office were elected to the Senate or the House of Representatives (emphasis added).

The Australian Electoral Commission published a summary and analysis of the House of Representatives report, in its Electoral Backgrounder No. 2, Parliamentary Report on Section 44 of the Constitution.

The government response to the House of Representatives Committee report was tabled on 9 December 1997.The overnment accepted the major recommendations of the Committee in principle, stating that:

it accepts that constitutional and legislative action is the only realistic way in which to overcome these shortcomings [of section 44]. Given adequate support for a suitable proposal, the government would be disposed to put the constitutional issue to a referendum at an appropriate time.

On the other hand, it also indicated:

  • that a proposal should not be formulated without first considering whether it would be appropriate also to amend ther parts of section 44, or any other relevant constitutional provision.

There has been no such formal consideration of this issue since the government made its response.

On 29 October 1996 , following the High Court ruling in Free v Kelly, Senator Bob Brown moved a motion calling on the Government to formulate a proposal for amendment of the Constitution to deal with section 44.[5] The motion was passed without a division.

Two years later, there having been no further action on the House of Representatives Committee Report, Senator Bob Brown introduced a Bill into the Senate, titled the Constitutional Alteration (Right to Stand for Parliament Qualification of Members and Candidates) Bill 1998. Its intention was to alter both subsections 44(i.) and 44(iv.) of the Constitution. Senator Brown s Bill highlighted one of the problems with reforming section 44. Everyone agrees that the section is unsatisfactory. However, there are significant differences of opinion over how it should be changed. Senator Brown wanted to replace subsection 44(i.) with a requirement that a candidate be an Australian citizen. During debate on the Bill on 3 December 1998, however, it was clear that others, such as National Party Senator Bill O Chee, believed that a candidate should hold only Australian citizenship.[6]

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Proposals in the Current Parliament

After the 1998 election, Senator Brown put the Bill back on the notice paper, and it was debated again on 15 May 2003.[7] On this occasion the Bill secured the support of the ALP Opposition, the Australian Democrats, Australian Progressive Alliance and Greens, as well as independents Shane Murphy and Brian Harradine of Tasmania. However, a Bill proposing an amendment to the Constitution must pass each chamber by an absolute majority (see the Constitution, section 128). When Senator Brown s Bill was put to the vote, it secured the majority of votes in the chamber, but fell short of an absolute majority by three votes. Had another three of the ALP Senators present on the day but absent from the chamber for the division been there for the vote, it is likely that the Bill would have passed the Senate. However, unless there was a change in the government s view, it would have faced defeat in the House of Representatives.

On 30 October 2003, the Senate passed a motion moved by Australian Democrats Senator Andrew Bartlett, expressing the Senate s view that sections 44(i.) and 44(iv.) of the Constitution should be amended to remove the current prohibition on dual citizens and public sector employees being able to nominate for election to the Commonwealth Parliament . [8]

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[1]. Senate, Debates, 14 May 2002, pp.1393-8.

[2]. Gerard Carney, Members of Parliament: Law and Ethics, Prospect Media, Sydney, 2000 (held in the Library collection at 342.94055 CAR).

[3]. Reproduced with the permission of the High Court of Australia.

[4]. Parliamentary Paper no.131 of 1981.

[5]. Senate, Debates, 29 October 1996, p.4660.

[6]. Senate, Debates, 3 December 1998, p.1250.

[7]. Senate, Debates, 15 May 2003, p. 11263.

[8]. Senate, Debates, 30 October 2003, p.17220.

 

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