Electoral Legislation Amendment (Candidate Eligibility Bill) 2021

The Electoral Legislation Amendment (Candidate Eligibility) Bill 2021 (the Bill) is a Government Bill that seeks to amend the Commonwealth Electoral Act 1918 (the Act) to modify the candidate eligibility questionnaire that was added to the candidate nomination form following the section 44 citizenship crisis. The Bill was introduced in the final sitting period of the 2021 sitting calendar, along with the Electoral Legislation Amendment (Annual Disclosure Equality) Bill 2021, which was passed at the end of that sitting period and has now received Royal Assent.

In 2018 the Joint Standing Committee on Electoral Matters (JSCEM) handed down a report from its inquiry into section 44 of the Australian Constitution and the disqualifications of a number of parliamentarians. In response to a recommendation of the report the Government introduced the Electoral Legislation Amendment (Modernisation and Other Measures) Bill 2018 which, among other measures, amended the Act to require candidates for federal elections to complete a questionnaire to support their claims that they were eligible to stand for election under section 44 of the Constitution.

The 2018 Bill passed and the provisions were in place for the 2019 federal election. Whether because of the new candidate qualification checklist or not, there were no disqualifications due to section 44 following that election.

The Act requires the Australian Electoral Commission (AEC) to make the candidates’ completed forms available on its website for 40 days after the return of the writ (section 181A). However, the Parliament has published the forms for all elected members and senators on its register of qualifications on the Parliament House website for the House of Representatives and the Senate and as such completed forms under the existing provisions of the Act can be viewed there.

In its report on its inquiry into the 2019 federal election the JSCEM noted that the checklist worked well but that the language on the checklist could be clarified. It recommended:

the Candidate Qualification Checklist be revised before the next election to make mandatory the provision of information about the date and country of birth for candidate, their parents and grandparents. Where any of this is not known, a candidate should be required to make a categorical statement that the information is not known. Where exact date is not known for the birth of the candidate, their parent, or a grandparent, an option should be allowed to state the year instead. The AEC should also be required to identify the day on which checklists will be published, when publishing the timeline for an election (Recommendation 1, p. 13).

In August 2021 the Assistant Minister for Electoral Matters, Ben Morton MP, released an exposure draft of what was to become the Bill. In his press release, the Assistant Minister noted:

The Exposure Draft Checklist is more streamlined with six fewer questions. Consistent with the JSCEM recommendation, the Checklist makes some questions mandatory for candidates nominating to be elected to the Australian Parliament, and requests important information as to a candidate and their parents’ date and place of birth, and date of naturalisation (if not an Australian Citizen at time of birth).

The main effects of the Bill would be to make more of the questions in the questionnaire mandatory and to make the bulk of the questionnaire itself more straight forward. Specifically, questions in the questionnaire would be mandatory unless they are marked as optional, and mandatory questions will have a ‘don’t know’ option rather being able to be left blank (item 2).

The Bill consists mainly of items which effect, or are consequential to, the default mandatory nature of the questions, and item 13, which would replace Form DB in Schedule 1 of the Act, which is the qualification questionnaire. The form would note:

You must respond to all of the items in the checklist, except when a response is not required because the item is not applicable to you or the item is marked “[OPTIONAL]”. You must also sign the checklist in the space provided at the end of the checklist. Your nomination will be rejected if these things are not done.

As amended, the form would largely ask the same questions as the current form but does so in a more compact and systematic way, leaving less room for candidates to interpret or skip questions.

For example, the current form asks, ‘do you know the place of birth of each of your parents and grandparents (whether biological or adoptive)?’ followed by a Yes/No tick box and an open text box for ‘other relevant details’. The proposed form asks more specifically for the date of birth, place of birth, citizenship, and optionally any further details, separately, for each of the candidate, their parents, and their four grandparents. It has a similar section for current and former spouse. Additionally, the questions relating to the candidate’s citizenship are more detailed, with a note that states, ‘[i]f you contend that you have renounced or lost your foreign citizenship, you must provide at least one document that you are satisfied supports your contention’.

Compared to the Exposure Draft the Bill is more explicit in providing a separate section of the form for each of the candidate’s parents/grandparents (plus one additional section for any not covered). The Bill is also more explicit about offering ‘don’t know’ options for certain questions and not other questions.

The questions for the remaining section 44 eligibility categories are generally similar to those in the current Form.

At the 2019 federal election there were 1,056 candidates for the House of Representatives and 458 for the Senate, all of whom would have completed the candidate checklist to have nominated. The form requires a considerable amount of information to support a claim of eligibility and simplifying and clarifying the form is therefore a worthwhile endeavour.

It is worth noting that the AEC cannot reject a candidate based on their answers to the form, only on the basis that they have not correctly completed the form. The information can only be used by other candidates or electors who may believe that a candidate is not eligible to stand. However, the process of completing the form should also alert candidates to any issues with their eligibility and provide them the opportunity to secure supporting evidence.

The Bill would commence the day after Royal Assent, and therefore if passed before the 2022 federal election would be in effect for that election.


Flagpost is a blog on current issues of interest to members of the Australian Parliament

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