The Australian Constitution is our nation’s guiding document and is the foundation for how our Democracy is to operate. It is our nation’s rulebook and can only be changed by Australian citizens.
Democracies, through their constitutions and founding documents, are a method of distributing and controlling power on behalf of all citizens, including determining who is qualified to nominate for election to represent them in Federal Parliament.
In 1901, Australia’s founders knew the circumstances and expectations of Australian society would change over time. To address this they ensured Australian citizens could amend the Constitution, via a referendum, to reflect contemporary expectations. But quite rightly it is not an easy process to change the rules all Australians must abide by.
The Australian Constitution provides both qualifications and disqualifications for citizens to nominate for election. Most Australians would agree there should be some basic qualifications to nominate for election to Federal Parliament and that all citizens should have an equal opportunity to nominate for election. Many would also agree the Parliament should be demographically representative of the broader Australian community.
The qualifications contained in s. 34 provide a short list of criteria required to nominate for election which include citizenship, age and an entitlement to vote. Significantly, the section allows the Parliament to update qualifications over time to meet contemporary community expectations, which it has done.
The disqualifications contained in s. 44 provide five wide-ranging categories of which, unlike s. 34, the Parliament has no ability to amend to reflect contemporary community expectations. This has led to the High Court being the only jurisdiction with the authority to interpret and adjudicate on these five disqualifications.
Problems with s. 44 are neither new nor unpredicted. 20 years of Parliamentary Committee reports and a Constitutional Convention have all predicted that without constitutional reform to parts or all of s. 44, challenges would occur to otherwise qualified and validly elected Members of Parliament.
Problems with the operation of s. 44 have come to public attention over the past year as a result of the high number of citizenship issues dealt with by the High Court. While public focus has been on the citizenship cases (s. 44(i)), two other sub-sections (s. 44(ii) and s. 44(iv)) were also the subject of High Court consideration.
In addition to the previously identified problems with s. 44, recent High Court decisions have also created new uncertainties and future opportunities to manipulate election results. Recent High Court decisions on the interpretation of s. 44 are very clear. To nominate as a candidate, all steps must be taken prior to nomination to ensure candidates are not disqualified to be on the ballot paper. These are the strict constitutional rules to be followed to ‘get the paperwork right’. The question whether or not the application of these rules meets contemporary Australian expectations is a different matter altogether.
This report summarises the significant and consistent evidence received by the Committee and provides an assessment of the range of options available to Australians on options to mitigate or fix the problems caused by s. 44. Few today would argue with the intent of s. 44, but it is the impact that is at issue.
Australian dual citizens can sit on the High Court or fight and die for our nation – but not nominate as a candidate.
One of the most important decisions for Australia to discuss is at what point should disqualifications apply – on nomination, or after election.
While the Committee recommends a referendum to once and for all fix the problems with s. 44, we acknowledge the preconditions for success will take time to achieve. Therefore, the Committee has recommended that the Government and the Parliament implement early mitigation measures to reduce the possibility of High Court referrals after the upcoming by-elections and the next general election.
The Committee makes no judgement on the dual citizenship issue itself. We believe it is one for Australians to determine as part of a wider debate in what qualities we want in our candidates standing for election and for those who are elected to serve in Parliament.
On behalf of the Committee I thank all submitters and witnesses for their significant and considered submissions to this inquiry. We also sincerely thank the talented and dedicated secretariat staff of the Joint Standing Committee on Electoral Matters who supported the production of this report - Lynley Ducker, Siobhan Leyne, Nathan Fewkes, Danton Leary and Kelly Burt.
My sincere thanks to Mr Andrew Giles, deputy Chair of JSCEM, and all committee members for their shared commitment to work together to ensure Australia has the strongest possible democratic institutions.
This Parliamentary Committee has performed its role. It is now over to the Australian people and our elected representatives to discuss and then determine if s. 44 is still fit for purpose in contemporary Australian society.