Posted 19/05/2022 by Nathan Church
With less than a week remaining in the federal election campaign, there have been multiple instances of candidates facing eligibility issues. Section 44 of the Constitution lists five grounds that disqualify a person from ‘being chosen or sitting’ as a senator or member: allegiance to or citizenship of a foreign power; being convicted of offences punishable by imprisonment for a year or more; bankruptcy; holding an office of profit under the Crown; and having a pecuniary interest in an agreement with the Public Service. The High Court has ruled that these disqualifications apply from the time of nomination, not election. Since 2016, 18 sitting parliamentarians have been found to be invalidly elected or have chosen to ‘resign’ due to the operation of this section. The most recent of these was Ben Small, who resigned as a senator for Western Australia on 15 April 2022, having become aware he held New Zealand citizenship. This FlagPost article identifies the reasons for disqualification and discusses some notable recent examples in the current federal election campaign.
During the 45th parliament, 15 parliamentarians were either disqualified or resigned due to section 44(i) of the Constitution. This section stipulates that any person who ‘is under any acknowledgment 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 a citizen of a foreign power…[is] incapable of being chosen or of sitting as a senator or member of the House of Representatives’. The High Court ruled in Sykes v Cleary [No 2] that ‘a unilateral declaration renouncing foreign citizenship’ was insufficient ‘when some further step can reasonably be taken which will be effective under the relevant foreign law to release that person from the duty of allegiance or obedience’. The Court clarified the concept of ‘reasonable steps’ in 2018, finding that it was not enough for a person to have applied to renounce their foreign citizenship before nominating as a candidate. Rather, to avoid conflict with section 44(i), their renunciation must be completed and take effect under the relevant foreign law (unless the foreign law would irremediably prevent them renouncing their citizenship). Four other parliamentarians resigned following this judgement, ‘accepting the Gallagher case as a precedent because they had relied on the same defence’.
In the 2022 election the issue of timing has remained pertinent, notably in the case of Independent candidate for Boothby, Jo Dyer, whose nomination came under a section 44 cloud. Having applied to renounce her UK citizenship in December 2021, and nominated as a candidate on 14 April 2022, Ms Dyer received confirmation during the campaign that her British citizenship had been revoked in February, confirming her eligibility. However, the ALP’s candidate for Hughes, Peter Tsambalas, acknowledged in early April that his dual citizenship would not be resolved in time, and accordingly withdrew from the campaign. Media reporting has suggested numerous other candidates could also be affected by section 44(i) following the AEC’s publication of candidate checklist forms.
Section 44(iv)—which disqualifies those who hold ‘any office of profit under the Crown’—has also become an issue this campaign. The Independent candidate for Flinders, Despi O’Connor, initially suspended her campaign based on her employment with the Victorian Department of Education at the time of nomination. Having resigned, Ms O’Connor has since resumed her campaign. The AEC has stated that election in Flinders ‘will proceed including all candidates as declared’; and if ‘Ms O’Connor is elected, her eligibility to serve as the Member for Flinders must be determined by the Court of Disputed Returns’. Phil Cleary was disqualified in 1992 as the sitting Member for Wills for not having resigned his job as a Victorian school teacher prior to standing for election. More recently, in 2017 the Court also determined that Hollie Hughes was ineligible to be elected to the Senate (via countback) based on being a member of the Administrative Appeals Tribunal.
Additionally, Rodney Culleton’s nomination as a Great Australian Party candidate for a WA Senate seat has also come into question, based on section 44(iii), which disqualifies any person who is an undischarged bankrupt or insolvent. The Australian Electoral Commission has noted Mr Culleton is listed on the National Personal Insolvency Index and the implications regarding his eligibility. Mr Culleton was also previously disqualified under section 44(ii) as a Senator for WA when in 2017 the Court of Disputed Returns determined he was a person convicted and subject to be sentenced for an offence punishable by imprisonment for one year or longer at the time of the 2016 federal election.
As the number of section 44 disqualifications has grown, there have been increasing calls to amend the Constitution to mitigate such exclusions. In 2018 the parliamentary Joint Standing Committee on Electoral Matters published a report into the impact of section 44 on Australian democracy, recommending that a referendum question be prepared to repeal it. Other commentators and academics have also advocated for such a constitutional change. However, the Constitution can only be changed by a referendum, and successful changes to the Constitution have been a rare occurrence. Of the 44 proposed amendments since Federation, only 8 have been successful, with the last occurring in 1977.