In this inquiry the Committee has investigated and reported on the impact of s. 44 of the Constitution. The Prime Minister referred this inquiry to the Committee after a number of serving Senators and Members of Parliament were disqualified under s. 44.
Although the potential for s. 44 to disqualify serving parliamentarians has been known for many decades, the impact on representative democracy in Australia is only now becoming clear.
The recent High Court decisions have clarified the breadth of scope of s. 44. It is now apparent that s. 44 is increasingly acting as a barrier to political participation for large sections of the Australian community.
This report sets out the historical background of s. 44, describes the current situation, explains the ramifications of taking no action, and explores options for reform.
It does not make any judgement as to the appropriateness of dual citizen–or any other currently disqualified persons–sitting in the Federal Parliament. However, it does conclude that under s. 44 as it currently stands, the Parliament and the Australian community more widely, have no capacity to debate the appropriateness or inappropriateness of existing Parliamentary disqualifications, and make any changes to reflect contemporary expectations.
The current debate has centred on disqualification for dual citizenship. The Constitution uses citizenship as a way of measuring a person’s allegiance to Australia. The Committee agrees that allegiance is essential; but considers it is time to update this qualification for Parliament to reflect contemporary community standards.
The Committee has considered this inquiry along the same principles that it has applied to other electoral reform, namely does it enhance our democracy through:
clarity about what is required and by whom;
consistency of regulations to support a level playing field;
compliance through enforceable regulations with minimal, practicable compliance burdens.
When considered in these terms, as is explored throughout the report,
s. 44 imposes obligations on potentially half of all Australians which would prevent them from what should be their fundamental right in a democracy–nominating to stand for election. For those who can remove their disqualification–for example, renounce foreign citizenship–this process could take months or even years and many thousands of dollars to complete, and may be impractical to complete in time for an election.
The disqualifying provision of dual citizenship has been the focus of recent debate on s. 44. The Committee has made no findings on whether dual citizens should be able to sit in Parliament. However, the current wording of s. 44 does not allow this to be debated and updated. The Committee states quite clearly that the qualifications to enter Federal Parliament should meet contemporary expectations and that this, and future generations, should be able to debate and set those expectations.
Democracy is a method of distributing and controlling national power on behalf of all citizens. The Australian Constitution is the foundation document that provides the rules on how our democracy should operate. A fundamental democratic rule is that which determines who is qualified to represent other citizens in Federal Parliament.
The Constitution is Australia’s founding document and provides the basis for our democratic political system. Australia’s Constitution was drafted at a series of constitutional conventions in the 1890s and took effect on
1 January 1901, when Australia became a federated nation.
The Constitution is the legal framework for how Australia is governed. The Constitution is a supreme law overriding other laws and it can only be changed by referendum. Only the Australian people have the power to decide whether it should be amended, following support of the proposal by Parliament.
The Constitution was intended to be a living document that reflects who we were as a nation in 1901. Since its drafting, the Constitution has been debated at constitutional conventions and has been amended eight times–reflecting our evolving nation as we grew from our colonial past into a vibrant, modern, multicultural nation.
The Constitution was drafted during a series of constitutional conventions in the 1890s. Although some aspects of s. 44 were debated, some of the most problematic–for example removing the limit on disqualification to only those who take positive steps to obtain foreign citizenship–were introduced at the last minute and without debate.
More information on the Constitutional debates is in Chapter 2.
Section 34 of the Constitution provides for the qualifications necessary to be a Member of the House of Representatives or a Senator. In the Constitution, it states the these qualifications are:
he must be of the full age of twenty-one years, and must be an elector entitled to vote at the election of members of the House of Representatives, or a person qualified to become such an elector, and must have been for three years at the least a resident within the limits of the Commonwealth as existing at the time when he is chosen;
he must be a subject of the Queen, either natural-born or for at least five years naturalized under a law of the United Kingdom, or of a Colony which has become a or becomes a State, or of the Commonwealth or of a State.
Unlike s. 44, these qualifications only apply ‘until the Parliament otherwise provides’. This phrase exists in many clauses of the Constitution, and recognises that, as time passes, Parliament should be able to legislate to amend and update the wording in the Constitution to reflect community standards.
Parliament has legislated to change the qualifications in s. 34 through the Commonwealth Electoral Act 1918. This is discussed further in Chapter 3.
Unlike the constitutions of many other democracies, in addition to qualifications, the Australian Constitution also has a section on disqualifications. Section 44 sets out who is disqualified to stand as a candidate or serve as a Member of Parliament. More information about the separate subsections is in Appendix A ‘Understanding Section 44’.
Section 44 works in conjunction with s. 45, which includes two additional disqualifications that only apply to Parliamentarians once they are elected.
Considering s. 44 in conjunction with recent High Court rulings, it becomes clear that this is more than just a matter of ‘paperwork’. Large sections of the Australian community are disqualified from nominating for election, despite being eligible under s. 34. Some of those automatically disqualified from nominating under s. 44 may be able to address the reasons for disqualification by quitting their public sector job or successfully renouncing a foreign citizenship before nomination, but many will never be able to. With the changing demographic of our nation, s. 44 will increasingly disenfranchise more and more citizens from nominating.
Ironically, while the reason in 1901 for disqualifying dual citizens was to prevent foreign allegiance, in practice s. 44(i) today effectively outsources eligibility to nominate to the citizenship laws of foreign nations. This permits foreign laws to determine who is capable of nominating for and sitting in the Australian national Parliament. Any country can amend its citizenship laws and unknowingly make Australians ineligible to put themselves forward for election, in some cases without their knowledge.
This restriction on dual citizens does not apply to other public roles in the Commonwealth; for example judges, senior military officers or heads of public service departments.
The High Court has held that a person who takes ‘reasonable steps’ to renounce his or her foreign citizenship can comply with s. 44. This is a sensible modification of the strict requirements of s. 44, particularly in cases where foreign countries do not allow renunciation. The High Court gave further clarification of what are ‘reasonable steps’ in the recent judgement in Re Gallagher.
Section 44 also disqualifies persons who have been convicted of an offence punishable by more than one year’s imprisonment, and persons who are an undischarged bankrupt or insolvent–denying the right of electors to assess the worthiness of a candidate.
It also disqualifies those who hold an ‘office for profit under the Crown’, accepts a ‘pension’ from the Crown or has a pecuniary interest in agreement with the Public Service. The finances of the Commonwealth spread far further in 2018 than they did in 1901. Section 44 disqualifies teachers, nurses, firefighters and anyone with a Commonwealth contract–unless they quit their job simply to nominate and have a go.
For reasons lost to time, unlike s. 34, s. 44 does not contain the words ‘until the Parliament otherwise provides’. Parliament therefore cannot legislate to override s. 44. As discussed in Chapter 3, this entrenchment of parliamentary qualifications is unusual in a western democracy, including within the States and Territories of Australia.
Under the existing interpretation of the words of s. 44 by the High Court, a person must be qualified at the time of nomination, not election. The requirement that a candidate rearrange their affairs at nomination–regardless of the chance of success–places an additional barrier to Australians who may wish to participate in the political process.
In practice, the Constitution, as written and interpreted by the High Court, diminishes the range of candidates available to serve in the democratically elected federal Parliament at the very time many argue that the Parliament should be more, not less, representative.
Section 45 provides for the creation of a vacancy if any Senator or Member of the House of Representatives becomes disqualified under s. 44, or if a Senator or Member:
takes the benefit of bankruptcy laws - s. 45 paragraph (ii).
takes a fee or honorarium for services rendered to the Commonwealth - s. 45 paragraph (iii).
Section 45 is dependent on s. 44 for the operation of subsection 45(i). The Committee has therefore included both s. 44 and s. 45 in its inquiry and final recommendations.
Section 47 gives the power to either House of Parliament to determine the question of the qualification of its members, ‘until the Parliament otherwise provides’. The Parliament has ‘otherwise provided’ in Part XXII of the Commonwealth Electoral Act 1918. This Part sets out a process to refer questions respecting the qualifications of Members and Senators to the Court of Disputed Returns for decision.
A referral under s. 47 may be made by a motion of either House at any time that the Houses become aware that one of its members has become subject to any of the ‘disabilities’ (disqualifications) in s. 44. This is contrast to the process under the Electoral Act, which has a limitation of 40 days for the filing of a petition to the Court of Disputed Returns.
Motions to refer Members or Senators under s. 47 have been defeated in the House and the Senate. For example, the House of Representatives took the position not to make a s. 47 referral in the case of the Member for Leichhardt after a suggestion that he may be ineligible under s. 44(v).
There have also been occasions when motions to refer were called for in debate, but not formally put.
In the case of the Member for Leichhardt, the House relied on advice given to the Attorney General by the acting Solicitor-General. The advice stated that, in his opinion, the Member for Leichhardt was eligible due to the High Court’s previous ruling in Re Webster (see Chapter 3).
Similar advice was reportedly provided by the Solicitor-General in 2017 regarding the eligibility of the Member for New England and used as the basis for the House initially refusing to refer him under s. 47. The Member was later referred by the House, and the High Court found him ineligible under s. 44(i).
There is no way to challenge a decision of the Houses to refer or not to refer. Indeed, when ruling on the motion to refer the Member for Leichhardt, the Speaker took the view that he could not take decisions that limit the rights or powers of the House and that it should be ‘a master of its own destiny.’
The Constitution also establishes the right of each House to determine its own powers, privileges and immunities (section 49) and confers the absolute right to make rules for how it conducts its business (section 50). These are fundamental principles of the separation of powers in the Westminster system.
The Houses may restrict themselves in how and when referrals are made under s. 47, however restrictions cannot be imposed by the Executive or the High Court. Any moves by the Houses to restrict or diminish their rights in this regard would have to be considered cautiously.
Section 51 of the Constitution sets out the legislative powers of the Commonwealth Parliament, often referred to as the ‘heads of power’. Section 51 (xxxvi) gives the Commonwealth Parliament the power to legislate for ‘matters in respect of which this Constitution makes provision until the Parliament otherwise provides.’
In including this clause throughout the Constitution, the original drafters recognised that the Constitution had to be a living document. Ten of the 60 clauses in Chapter 1- The Parliament contain this clause and without it the Constitution would still require our elected parliamentarians to be men over the age of 21.
It is unknown why s. 44 omits this clause, although–as will be discussed in Chapter 2–s. 44 was a last-minute addition to the draft Constitution.
Reviews since 1901
Section 44 has been the subject of several inquiries and reviews, including:
A 1981 inquiry by the Senate Standing Committee on Constitutional and Legal Affairs;
The 1976, 1983 and 1985 sessions of the Constitutional Convention;
The 1988 final report of the Constitutional Commission; and
A 1997 inquiry by the House of Representatives Legal and Constitutional Affairs Committee.
Most of these reports recommended significant changes to s. 44, including complete repeal. All the inquiries heard evidence on the increasing number of Australians who would be disenfranchised by s. 44, and the future problems that would be caused by the breadth of the provision and the inability to amend it.
These inquiries show that the current problems caused by s. 44 were not unforeseen, and will certainly re-occur if nothing is done.
These inquiries and reviews are discussed in more detail in Chapter 3.
Issues and uncertainties
In this report, the Committee has identified a number of issues with the operation of s. 44 that have been known for decades. However, the recent decisions by the High Court, and the increased focus on these issues, have presented new challenges and uncertainties, many of which will only be clarified on referral to the High Court.
These uncertainties exist for both voters and candidates. Many issues have not been tested and will need to be examined by constitutional and parliamentary law experts. For example:
Can a political party manipulate an election by deliberately nominating an ineligible candidate and then contesting the successful candidate on the basis of preferences? Could a foreign government support a candidate to do the same?
Could Parliament refer a member under s. 47 for a disputed election on the grounds of preference flows from an ineligible candidate, even if the member themselves was not disqualified?
Will the increasing extent of ‘invisible’ investments such as superannuation schemes result in more exposure to pecuniary interests under s. 44(v)?
Could decisions to refer, or not refer, under s. 47 result in increased reputational damage to the Parliament? How would the public perceive inconsistent decisions made by the House and the Senate, or by different Parliaments over time?
What if the House or the Senate decides not to refer a person under s. 47 on the grounds that they do not believe he or she is disqualified, but the matter is taken to the High Court under the Electoral Act on the same grounds after a subsequent election? What are the legal, reputational and constitutional implications of two different decisions on the same facts?
Could a foreign government deliberately use s. 44(i) to extend citizenship to destabilise the federal Parliament?
After the decision in Re Gallagher, can a person avoid disqualification because their renunciation is impossible for personal, rather than legal, reasons; for example, if the relevant paperwork does not exist by reason of being part of the stolen generations, or a refugee, or adopted?
Will the increased focus on s. 44 result in an increased number of disputes and referrals to the High Court, and a consequent delay in decisions? How will that uncertainty affect confidence in Australian democratic processes?
Administrative and legislative options
The Committee inquired into all possible options to resolve the problems caused by ss. 44 and 45. Although some measures may ameliorate the impact of these sections, it is the Committee’s view that Australia should start afresh with a new, modern, scheme for determining the qualifications of federal Parliamentarians.
In particular, the Committee looked carefully at the frequently-made suggestion of asking the Australian Electoral Commission (AEC) to vet candidates before an election. The Committee does not support this proposal. It is vital to our democracy that the body responsible for running elections is not involved in any process of vetting or clearing candidates that could result in the perception that the AEC is deciding who nominates for an election. This is further addressed in Chapter 4.
The Committee has also considered the urgency of s. 44 in relation to the five upcoming by-elections for the House of Representatives, and the general election. The Committee has recommended that the Government take specific early measures to improve compliance with s. 44 in these elections.
These measures would improve trust and confidence in the electoral process and provide additional certainty for the electoral outcomes. They would also provide the Australian community with more time and opportunity to have a wide-ranging debate before any referendum to amend the Constitution is put.
Structure of the report
Chapter 2 provides historical context to the drafting and inclusion of s. 44 in the Constitution. It also gives an overview of the relevant High Court cases that result in the effect s. 44 has today.
Chapter 3 moves to more technical matters and discusses the qualification and disqualifications to stand for federal Parliament. The chapter sets out the problems caused by s. 44 and gives two scenarios that show the potential impact. The chapter also includes a comparative analysis of qualifications for Parliament in other jurisdictions–both in Australia and overseas–showing that the Constitution has comparatively onerous and unusual requirements.
Chapter 4 discusses the options for reform examined in this inquiry. The majority of witnesses favoured amending s. 44 through a referendum. This raises further issues:
What questions could be proposed at a referendum?
Could a referendum propose amendments to other sections of the Constitution related to parliamentary qualifications?
Could a referendum succeed?
How might the form of the question affect its success at referendum?
Several witnesses and submissions did not support amending the Constitution. The inquiry terms of reference asked the Committee to consider options that do not require constitutional change; for example, improvements to process or amending legislation. All these options are set out in Chapter 4.
Chapter 5 outlines the Committee’s position on s. 44 and the next steps following this inquiry.
To assist readers, much of the technical information has been taken out of the body of the report and put in the following appendices:
AUnderstanding Section 44
B Extracts from the Constitution
CSenate citizenship register
DHouse of Representatives citizenship register
EThe Court of Disputed Returns
FExtracts from the 1976, 1983 and 1985 Constitutional Conventions
Conduct of the inquiry
The terms of reference required the Committee to report with respect to
s. 44(i) by 23 March 2018, and with respect to any other provisions of s. 44 by 30 June 2018. The Committee decided to address all aspects of s. 44 in a single inquiry and report.
The Committee held six public hearings in Canberra, Melbourne, Sydney, Adelaide and Perth. It received 71 submissions from constitutional law experts, community organisations and interested members of the public. Participants in the inquiry are listed in appendices H and I.