In 2017, s. 44 of the Australian Constitution became the subject of national attention when a number of Senators and Members were either found by the High Court to be ineligible to sit, or resigned due to factors relating to potential ineligibility. As a consequence, three by-elections have been held, four more are scheduled to fill seats in the House of Representatives, nine Senators have been replaced, and a vacancy now exists for a senator for the ACT.
Impact of section 44
Until this time, there have been few High Court cases concerning s. 44 meaning recent judgments have provided the best understanding of the Court’s interpretation of its operation. We now know that:
A person who has a criminal conviction which is later quashed can be ineligible.
A person who holds or is eligible for dual citizenship cannot nominate as a candidate and serve in Parliament. With eligibility for foreign citizenship subject to the laws of other countries, the eligibility of elected members of the Australian Parliament is therefore subject to foreign laws.
An employee in the public sector must resign their employment to nominate for election.
A person who holds or gains Commonwealth employment after the election has been declared, may not be eligible for a vacancy that arises in the Parliamentary term.
While public commentary has focussed on whether dual citizens should be allowed to serve in our national Parliament, the consequence of the Court’s recent rulings is that many ordinary Australians are now ineligible to stand for election by virtue of their citizenship status or employment as a public official (including nurses, firefighters and teachers). This debate reaches far beyond the focus of public commentary to date, that members of the 45th Parliament ‘should have got their paperwork right’.
Impact on individuals
Below are some examples to highlight the problems and barriers addressed in the report. Most are based on real situations.
Lack of records–44(i)
Liz has no records of her father’s birth or childhood. Her father himself told various, contradictory stories about where he came from, including a suggestion that he changed his name as a teenager. Her father died over a decade ago and, despite searching, Liz has not been able to find any further records. She is having second thoughts about running for Parliament, knowing that she would be under constant threat of someone uncovering information about her father that might lead to her disqualification under s. 44.
Christine, a Gadigal woman, has won a position in the Senate. Her mother was part of the stolen generation and has no records of her, or her parent’s birth. There is a family rumour that Christine’s grandfather is Irish, but nobody really knows for sure. Although Christine has no disqualifications that she knows about, and had been a Senator for three years, she is in constant jeopardy that the identity of her grandfather will be discovered and she will be disqualified.
Matthew is employed by the Federal government in an ATO call centre. He resigned to contest the Senate election, but wasn’t successful and the expense cost him and his family significantly in lost income and associated benefits. Under the Public Service Act, Matthew has the right to return to his work. However he knows that if he does return to work, he will not be able to fill any vacancy in the Senate that might come up in the next six years. He has to choose between a secure job and the chance of a Senate seat.
Emily is a young woman who aims to make a career out of politics. She was born overseas and came to Australia as a toddler. Emily is passionate about Australia and committed to building links with the community of her country of origin. She is initially happy to give up her foreign citizenship in order to enter Parliament, but then she realises that it will also take away foreign citizenship by descent for her future children. She is not sure that she should make that choice for them simply because she has nominated as a candidate and is unlikely to be successful.
Adam has a courier business in a regional town, including several contracts with the local offices of the State and Commonwealth government. Adam wants to nominate for Parliament in an unexpected by-election, but only has eight weeks to rearrange his business affairs. He could cancel the contracts or sell his business; but both would mean serious financial loss. Adam considers ‘selling’ the business to his brother, but knows that every action he takes could later end up in the High Court, having devastating consequences for his family finances.
An incoming government has a large majority in the House of Representatives, and a majority of one in the Senate. The new government is undertaking a sweeping program of major reforms when it is discovered that the British citizenship renunciation of one of the government Senators did not take effect until a month after the nomination. This is clearly a breach of s. 44, but the Senate votes down a referral to the High Court on the grounds that Australia urgently needs the major reforms.
Jessica has applied to renounce her foreign citizenship well in advance of the next federal election. She has filled in her forms, and supplied all the documentation. The foreign bureaucracy has asked for more particulars, including the reason for requesting renunciation. Jessica has complied with every request made by the foreign bureaucracy and followed up the progress of her application regularly. It has already taken over a year and many thousands of dollars which she has taken out a loan to pay. However, her application is still ‘awaiting decision’. She wonders if this could have anything to do with several articles she wrote in her local paper criticising some of the country’s policies.
Jack has been involved in his local community for decades. He is currently on the boards of several government-funded organisations; including a school and a nursing home. Jack receives money for expenses from some of these organisations. He does not know whether this is the kind of ‘pecuniary interest’ that would breach s. 44 of the Constitution. He seeks legal advice and help from his political party but the advice is not conclusive. He hears that ‘no-one knows what the High Court will do’ if this was challenged after the election. He decides not to take the risk.
Gary is a popular local community leader and has been convicted of destroying property (a fence) as a result of a neighbourhood dispute. This carries a possible term of imprisonment of up to five years in NSW, but Gary is unlikely to go to prison. Gary is waiting for a sentencing date. He can’t nominate if he is ‘subject to being sentenced’ at the time without the risk of breaching s. 44(ii). He thinks his ability to stand for Parliament shouldn’t rely on court scheduling – he wants the voters to decide if he is suitable as he believes his local community understands the circumstances of his dispute.
Erin is a young entrepreneur who has attempted several start-ups, both successful and unsuccessful. Two years ago she declared bankruptcy and will have discharged her obligations before the election. She doesn’t think that one unsuccessful business venture should prevent her from nominating for Parliament as she has learnt a great deal from the experience.
The report also examines the history of s. 44, its insertion in the original Constitution and the many calls for its change by successive Constitutional Conventions and parliamentary committees. When considering this history, it is clear that s. 44 impedes our democracy, in ways never contemplated by our founders.
In contrast, s. 34, which provides the qualifications of parliamentarians, includes the clause ‘until the Parliament otherwise provides’. This clause has allowed the Parliament to deem the original qualifications set out in s. 34 in 1901; that he be 21 years old and a subject of the Queen (Victoria), naturalised under the law of the United Kingdom, or a colony, should more appropriately be any Australian citizen who has reached the age of 18 and is an eligible elector.
The absence of this clause in s. 44 means that it remains a reflection of the societal standards established in 1901, under Queen Victoria’s rule. The report finds that ss. 44 and 45 should be either repealed or amended to insert the clause ‘until the Parliament otherwise provides’.
The Constitution was written at a time when Australian citizenship did not exist and when the ‘foreign power’ referred to in s. 44(i) meant those foreign powers beyond the borders of the British Empire. In many ways this meant allegiance required of Parliamentarians then was much broader than contemporary expectations. It was allegiance to the Empire.
It is also clear from historical evidence drafters of the Constitution originally considered framing s. 44(i) to only apply when there had been active steps taken to acquire foreign allegiance or citizenship. This was then amended without debate to allow disqualification to occur through the passive conferral of citizenship. This potentially allows foreign governments to determine who is disqualified for the Australian Parliament.
There is no evidence that our founders intended s. 44 to apply to those seeking to nominate as well as those elected to Parliament.
Evidence suggests s. 44 was drafted in haste, in the last day of the final session of the Constitutional Convention in 1898, and ‘accepted out of weariness.’ If this is the case, we as a nation, should not be unwilling to engage in a debate to challenge its operation to reflect the values of a modern Australia.
The way forward
The report makes no comment on what today should be the most appropriate qualifications and disqualifications for parliamentarians. This is a matter that should be decided after a national, and parliamentary, debate. It is for the Australian public to decide on the qualifications of their elected representatives.
The report observes that, under the provisions of s. 44, and the High Court’s interpretation of s. 44, the Australian community, and the Australian Parliament, have no capacity to debate the appropriateness or inappropriateness of existing Parliamentary disqualifications.
In the Committee’s view, this should be rectified.
The rulings by the High Court have also exposed the electoral system to the risk of manipulation, where a successful candidate could have their election challenged on the basis of preference flows from an ineligible candidate. This raises the possibility of deliberate manipulation of disqualification rules to overturn an otherwise valid election. Even the suggestion of this type of manipulation is an unacceptable risk to our democratic process.
Many commentators have suggested the Australian Electoral Commission (AEC) be required to vet candidates for eligibility under s. 44. This Committee believes this would expose the AEC to accusations of bias, which is untenable in a free and fair democracy. Having the organisation responsible for running elections decide the eligibility of candidates would undermine the independence of the AEC. We must be able to trust in the impartial delivery of our elections in order to trust election results.
The Committee considers that ss. 44 and 45 should be either repealed or amended to insert the words ‘until the Parliament otherwise provides…’ This would allow the sections to be amended to reflect contemporary expectations of the Australian community, as is the case with similar sections in the Constitution.
The Committee believes that current, and future, generations should be able to debate and set the expectations of their Parliamentarians.
The Committee understands that the pre-conditions for a successful referendum on this issue will take time; time that is not available before the upcoming by-elections and the next general federal election. Therefore, the Committee has recommended a range of measures to mitigate the short-term impact of s. 44 on these pending by-elections, and the next federal election. These measures are designed to act as an interim solution until Australians have had the opportunity to discuss and debate who they want to be able to nominate for Federal Parliament, and how that can be achieved under our Constitution.
We, as Australians, should never be reluctant to test and debate the health of our democracy, particularly when an issue has created as much disruption as s. 44 has in the past year. We, as members of Parliament, should never be afraid of the debate and putting these questions to the Australian public.