Overview
1.1
This report covers the following matters:
the conduct of the inquiry and inquiry background;
a summary of the evidence received during the inquiry; and
the Committee’s position on the inquiry.
Conduct of the inquiry and background
1.2
This inquiry relates to the implications of recent decisions made by the Court of Disputed Returns concerning Section 44 of the Constitution.
1.3
The Senate referred the inquiry to the Committee on 6 December 2017 and requested a report by 6 February 2018. The Committee called for submissions with a closing date of 22 December 2017.
1.4
Section 44 of the Constitution establishes the rules for disqualification from Parliament. Any person who fulfils the grounds set out in Section 44 is disqualified from ‘being chosen or of sitting’ in Parliament. The full text of the relevant Constitutional provisions can be found at Appendix A.
1.5
In summary, there are five grounds for being disqualified from Parliament:
i.
foreign citizenship and allegiances;
ii.
treason and punishable offences;
iv.
holding an office of profit under the Crown; and
v.
having a pecuniary interest with the Commonwealth Public Service.
1.6
The terms of reference for this inquiry ask the Committee to formulate a regime for Senators and Members to disclose information relevant to Sections 44 (ii), 44 (iii), 44 (iv) and 44 (v) of the Constitution.
1.7
As noted in the terms of reference, there is already an existing regime in place for Section 44 (i). The Senate and House of Representatives have resolved to require Senators and Members to disclose information relevant to Section 44 (i) to identify any cases of potential foreign citizenship.
1.8
Under this arrangement, Senators and Members are required to lodge a statement declaring their citizenship status. The statement must include information on parentage, details of foreign citizenship renouncement or steps taken to renounce this citizenship. Knowingly providing false information has been proclaimed to be a ‘serious contempt’ of Parliament. Further details of the requirements can be found in Appendices B and C.
1.9
The terms of reference also asked the Committee to consider the decisions made by the Court of Disputed Returns in relation to former Senators Bob Day and Rodney Culleton. The Committee notes these decisions and the Court’s reasons in those matters.
1.10
The Court of Disputed Returns hears and determines matters referred on questions regarding the qualification of Senators and Members, in accordance with the Constitution and the Commonwealth Electoral Act 1918. The role, powers and function of the Court of Disputed Returns are outlined in Part XII of the Commonwealth Electoral Act. For further information, refer to Appendix D.
1.11
In addition to the Committee’s inquiry into decisions made by the Court of Disputed Returns, the Prime Minister has referred to the Committee an inquiry into the operation of Section 44 of the Constitution.
1.12
While having a different emphasis, the Prime Minister’s referral involves issues related to the inquiry into decisions made by the Court of Disputed Returns. These include:
decisions of the Court of Disputed Returns resulting in Senators and Members of the House of Representatives being disqualified from sitting in Parliament; and
how similar disqualifications could be avoided in future.
Evidence received
1.13
The Committee received one submission to the inquiry from Professor George Williams AO (University of NSW).
1.14
The submission noted the willingness of the High Court to take a strict interpretation of Section 44, which may lead to other parliamentarians being potentially disqualified. The submission highlighted that the disqualification of former Senators Bob Day and Rodney Culleton means ‘the reach of disqualification is now significantly larger than many had thought.’ Prof Williams submitted that this is ‘especially significant’ in relation to Section 44 (v), which relates to pecuniary interests with the Commonwealth.
1.15
Prof Williams submitted that the preferred option is to reform Section 44:
A referendum should be held at the next election to remedy this by way of repealing section 44 and providing instead that Parliament can, as it does for the qualification of electors, set down legislative standards for disqualification that can be amended over time.
1.16
Prof Williams noted that an alternative option is to expand the existing declaration and disclosure process beyond citizenship matters, which would involve:
developing a means to verify information;
having a mechanism whereby further documentation could be sought; and
developing a means to independently assess the risk of disqualification, ‘so that Parliament can make well-informed decisions as to which matters to refer to the High Court.’
1.17
The terms of reference for the inquiry relate to the implications of decisions made by the Court of Disputed Returns. The Committee received numerous emailed documents, including from Mr Culleton and Mr Day. Most of these items requested the Committee re-examine the circumstances behind the disqualification of Mr Culleton. These items, while read and noted, were received as correspondence as they did not directly relate to the implications of the decisions made by the Court of Disputed Returns and were lodged after the submission closing date.
Committee view
1.18
This inquiry’s terms of reference invite the Committee to examine issues currently subject to a separate inquiry into matters relating to Section 44 of the Constitution.
1.19
The Senate’s requested reporting date provided insufficient time to gather evidence and only resulted in one submission. The Committee does not intend to present a rushed report on such a significant constitutional issue. Rather, the Committee intends to focus on its other related Section 44 inquiry, which has a later reporting date.
1.20
Any conclusion, observation or recommendation relating to Section 44 and decisions of the Court of Disputed Returns will be contained in the Committee’s forthcoming report on the inquiry into matters relating to Section 44 of the Constitution.
Senator Linda Reynolds CSC
Chair