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Current Issues
Section 44 of the Constitution
E-Brief: Online Only issued March 2004;
Politics and Public Administration Group
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 f 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.
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).
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.
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.
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.
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).
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:
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]
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]
[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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