This chapter discusses options for administrative and constitutional reform. The terms of reference suggested three approaches:
Improving the administration of electoral laws, so the risks of inadvertent ineligibility are minimised.
Making legislative changes to the disqualification process.
Amending the Constitution.
During the inquiry, the following additional reform options were also canvassed:
Administrative changes, such as increased scrutiny and diligence when candidates nominate to stand for Parliament.
Legislative and procedural changes to the way matters are referred to the Court of Disputed Returns.
Amend s. 44 by inserting the words ‘until Parliament otherwise provides’ and subsequently legislating the grounds for disqualification.
Repeal s. 44 and place greater reliance on s. 34 and subsequently legislate to expand qualification requirements.
Amend s. 44 among a package of reforms to related sections of the Constitution; for example, ss. 16, 34, 42, 45, 46 and 47.
A combination of Constitutional and legislative reform.
The Committee carefully considered all options gathered in the evidence and in accordance with the terms of reference. All the options are discussed further below, with a summary of the evidence the Committee heard. These options are not mutually exclusive.
After consideration, the Committee is of the view that s. 44 as it stands should be repealed in its entirety, or the words added ‘until the Parliament otherwise provides’. Section 45, which is both dependent on and closely related to s. 44, should also be repealed or have the words added ‘until the Parliament otherwise provides’. Through the operation of s. 34, Parliament would then be able to legislate for both the qualifications and disqualifications of Members and Senators. The Committee’s view is set out further in Chapter 5.
Before discussing the options for reform in detail, the Committee notes that none of the larger reform options will be able to be in place in time for several forthcoming by-elections.
The Committee therefore suggests that the Government implement measures to improve the compliance with s. 44 before these elections. This will also improve public trust and confidence in the election results, and increase certainty of the outcome for both the public and the Parliament.
The Committee notes that these measures will require bi-partisan support to implement. However the Committee considers that some early measures are necessary to restore public confidence and provide greater support to potential candidates.
Full disclosure at time of nomination
The Committee recommends that all candidates for election be required to make a public disclosure of family citizenship history at time of nomination. This disclosure would be in the same format as that required by the citizenship registers of current Members of Parliament.
Candidates would also be required to disclose any information relevant to the remaining parts of s. 44; for example bankruptcy, criminal convictions and contracts with the Commonwealth government.
Parliament to agree to limit its referrals for potential breaches
These measures require Parliament to agree in advance what action it will take in relation to alleged breaches of s. 44. This could be done by amendments to the Standing Orders.
Allegations of breaches arising from publicly disclosed information
If a breach arises from information that was publicly disclosed, the Committee recommends that Parliament preserve the current option for a person to challenge the election result by way of election petition filed within 40 days of the return of the writ. A person’s eligibility should not be able to be questioned in any other way.
Preserving the 40 day time limit balances the need for compliance with the need for certainty. It gives a window of opportunity to raise matters that were the subject of public disclosure, but then provides the certainty that it cannot be raised again during the life of the Parliament.
Allegations of breaches that were not publicly disclosed, or arise after nomination
If a breach arises that was either not publicly disclosed, or occurred after the candidate nominated, the Committee recommends that that matter go firstly to the Privileges Committee of the relevant house. This is a bi-partisan committee that has specific responsibility for the privileges of the Parliament.
The Privileges Committee will then recommend to the relevant House, on the basis of an inquiry into whether s. 44 has been breached, whether the relevant House should refer the matter to the Court of Disputed Returns (the High Court).
The Committee suggests that the Privilege Committee does not recommend a referral to the High Court where the only question or issue is one of foreign law; that is, where the issue of citizenship relies on a consideration or interpretation of foreign citizenship laws.
Option 1–No constitutional change
Several submissions and witnesses argued that s. 44 of the Constitution is working as intended–either in its entirety or at least in relation to s. 44(i) and foreign citizenship. Therefore the Constitution does not need amending and no other substantive reform action is required.
A submission from Mr Michael C Douglas made five observations on s. 44(i) and foreign citizenship:
The reasonable steps exception is clear. (In relation to s. 44(i), a person with dual citizenship may be eligible to serve in Parliament if they have taken ‘all reasonable steps’ to divest their conflicting allegiance.)
The reasonable steps exception is not unusual.
s. 44(i) is not procedurally unfair.
s. 44(i) is not otherwise unjust.
Mr Les Yule and Mr Colin Lynch submitted that the Constitution’s requirements are clearly stated. Mr Douglas submitted:
In my view, the recent criticism that has been directed towards s. 44(i) would be better directed towards the politicians who, while seeking to draft legislation for a living, failed to come to terms with the plain language of our Constitution prior to seeking election.
Mr Simon Cowan (Centre for Independent Studies) disagreed with the notion of s. 44 being inadequate or old-fashioned. He said:
For democracy to function as intended, the public must believe that politicians are acting in the public's best interest… The appearance of a conflict of interest, even if it does not actually influence the behaviour of an individual, undermines that trust and confidence. The theme of s. 44 is to disqualify persons in certain circumstances where conflicts of interest can be identified.
Professor Anne Twomey submitted:
My personal view is that there is no necessity to amend s 44(i) of the Constitution. The current problem was not caused by a matter of principle, but rather by the fact that some Members and Senators did not make the effort to inquire into their circumstances and take the necessary steps at the appropriate time to avoid disqualification.
Professor Twomey added that since there is now greater awareness, candidates and political parties are likely to be more diligent in future to avoid disqualification. However, she commented that s. 44(iv) and (v) involve ‘far greater uncertainties’ than s. 44(i) and may require amendment.
‘Reasonable steps’ exception
Some witnesses to the inquiry argued that the ‘reasonable steps’ exception is widely known and compliance with s. 44(i) is therefore readily achievable. Since the Committee heard this evidence, the High Court has further confirmed the scope of the exception in Re Gallagher, which is discussed in more detail in Chapter 2.
In his submission, Mr Douglas outlined how the reasonable steps exception has been known for 15 years. Professor Twomey submitted:
While in some circumstances it may be difficult to renounce a foreign citizenship and problems may arise when documentary evidence has been lost due to war and displacement, such circumstances are likely to fall within the ‘reasonable steps’ exception acknowledged by the High Court.
Professor Tony Blackshield (who favours repealing s. 44) said the reasonable steps exception has a narrow application:
But the Court will not defer absolutely to the foreign law; it will do so only if the operation of the foreign law is compatible with the reasonable expectations of our Constitution. So the point is not whether the actions of an individual member of Parliament have been reasonable, but whether the requirements of the foreign law are unreasonable.
If the foreign country makes it impossible to renounce its citizenship, or imposes such onerous requirements or conditions that we find them unreasonable, then a person who has done everything within their power to effect a renunciation will be thought to have done enough. But ‘everything within their power’ may still be a much more onerous test than talk about ‘reasonable steps’ might suggest.
A joint submission from Professor George Williams, Dr Sangeetha Pillai and Mr Harry Hobbs noted that ‘what constitutes ‘reasonable steps’ may vary from country to country, and depending on broader circumstances.’
Dr Joe McIntyre said that reasonable steps can be a ‘high bar’ to overcome. He added that there is a ‘belief… I can jump online, renounce and move on… that's simply not what is happening.’ The Committee notes that the recent decision in Re Gallagher makes it clear that the exception will only apply in cases where the foreign country has ‘irremediably’ prevented an Australian from renouncing the foreign citizenship.
No unfairness or injustice
Dr John Cameron said there is an impression that parliamentarians believe they are ‘above the law and the law does not apply to them.’ In his submission, Mr Douglas commented that checking citizenship status is a reasonable inconvenience. He submitted:
This may require some effort and time; it may prevent last-minute nominations for election. But there is nothing wrong with that—in my view, this is desirable. We should not want lazy people making law and governing.
For the most part, the plain English meaning of the section aligns to its legal meaning. … If you were to ask a non-lawyer, ‘How do you find out whether you are a citizen of the United Kingdom?’, they would probably say, ‘You should contact the UK Government’.
Where a parliamentarian cannot determine their citizenship status after extensively checking their background, Mr Douglas said the ‘reasonable steps exception would cover those kinds of candidates.’
However, the question remains–is it reasonable for Australians to have to go to the time and expense of extensive background checks simply to nominate for Parliament?
Mr Simon Cowan (Centre for Independent Studies) said that s. 44 does not indefinitely prevent dual citizens from serving in Parliament or being Prime Minister–provided they first ‘shed the potential conflict of interest’. He said:
The obligations of s. 44, in my view, are not an onerous burden for the vast majority of the population, and having such a provision in our Constitution sends the message very clearly that politicians should have unequivocal and undivided loyalty to Australia and its people. This is neither too great a price to pay nor an outdated idea.
A submission from NSW Young Lawyers (Public Law and Governance Committee) stated:
The Federal Parliament has continued to be made up of a range of talented and committed individuals who have been elected as members of Parliament from different backgrounds and with different skills. The words of s. 44 do not restrict this from continuing to occur, and the PLGC recommends that there be no changes to the wording of s. 44.
Mr Greg Northover submitted that loyalty to Australia should be the key consideration and ‘any attempt to dilute this singular and primal qualification must be vigorously opposed.’
Option 2–Administrative reforms
Administrative-level reforms proposed in the evidence included the following:
Increased diligence and candidate awareness prior to nomination.
Assistance and advice from the Australian Electoral Commission (AEC).
Verifying candidate eligibility.
Continuous disclosure of eligibility on a register.
Due diligence prior to nomination
Several submissions commented that candidates and political parties should take greater responsibility for due diligence and checking their own personal backgrounds. This could include tendering documentary evidence when nominating to stand as a candidate. Mr Simon Cowan (Centre for Independent Studies) said:
They are asking the public to vote for them. They are assuring the public and the AEC that they are eligible. It's up to them, to a certain extent, to prove it or at least be certain that that's true.
Mr Tom Rogers (Commissioner, Australian Electoral Commission) said:
…the AEC already provides a wide range of resources on our website, including guides, handbooks and electoral backgrounders that outline very clearly information for potential candidates on the eligibility requirements set by s. 44.
The AEC also offers briefings to candidates and political parties. Mr Rogers noted that ‘compliance with s. 44 is the responsibility of the candidate—and the candidate alone.’
A joint submission from Dr Joe McIntyre, Ms Sue Milne and Professor Wendy Lacy observed:
Even if major parties put in flawless vetting processes for their candidates, it is unlikely that these will filter through to smaller parties. …we will continue to have periodic episodes of disqualifications.
Professor Graeme Orr observed that the High Court had shown ‘relatively little regard’ for the practical challenges for minor party candidates contending with ‘uncertain federal election dates and without access to constitutional or citizenship lawyers.’
A submission from Arjuna Dibley submitted that the AEC ‘should evaluate how potential candidates are in fact engaging with AEC processes.’ A number of submissions suggested the nomination process could include checklists, questions or guidance to ensure candidates reflect more carefully on their circumstances and family background. The NSW Young Lawyers Public Law and Governance Committee suggested including a statutory declaration in the nomination form.
Assistance and advice from the Australian Electoral Commission
The AEC advised ‘it may be possible’ to develop an online self-assessment process to assist prospective candidates, in cooperation with relevant Commonwealth agencies. The AEC submitted:
We would anticipate that the online self-assessment checklist would be available on the AEC website for potential candidates to use at any time, not just in the lead up to an election. This would allow potential candidates to make relevant inquires and, if necessary, take remedial action to ensure that they are not disqualified… prior to lodging a candidate nomination with the AEC during an election period.
The AEC added that it is ‘not currently funded to develop this online facility.’ Professor Cheryl Saunders supported the idea, but noted it would not be foolproof. A submission from Ms Lorraine Finlay noted the risks involved if the AEC were drawn into providing incorrect advice as part of a vetting process.
Professor Helen Irving noted that while the AEC is not a judicial body in a position to interpret the Constitution, she said it could refer candidates to expert advice on foreign citizenship law. A joint submission from Dr Joe McIntyre, Ms Sue Milne and Professor Wendy Lacy noted that there can be ‘little agreement amongst legal academics and practitioners’ on how the High Court may resolve certain s. 44 questions. The submission added:
The current tranche of referrals and potential referrals to the Court on s. 44 include a number of cases that would have appeared clearly safe under the prior law.
Professor Graeme Orr characterised the High Court’s decisions as being rushed:
The court hears these cases occasionally and under great time pressure. Over several decades the High Court has shown no consistent interpretive method in developing s. 44.
Professor Orr also observed that it is very hard to prove a negative. Even if the case law provided certainty, Associate Professor Luke Beck said investigating citizenship would pose challenges and involves an ‘extraordinarily large number’ of individuals. He said a person could ‘inherit citizenship from their parents or grandparents or might gain it upon marriage’ and this would ‘require an investigation into the citizenship of the spouse’s parents and grandparents’. Associate Professor Elisa Arcioni said that this would be impractical in the time available:
There is Italian case law which shows that even as early as 1912 and back to 1860, there has been transferral of Italian citizenship. So the pragmatic difficulty of assessing citizenship of all candidates is beyond the capacity of any organisation within the time frame before a federal election.
Mr Rogers noted that an AEC self-assessment regime might flag potential issues, but could not provide candidates with a positive assurance of their eligibility.
Verifying candidate eligibility
It has widely been suggested that the Australian Electoral Commission (AEC) should have a role in vetting candidates for eligibility under s. 44 prior to elections. For legislative, practical, and reputational reasons this is a dangerous and unworkable suggestion. Most crucially, having the AEC both conduct elections and adjudicate on candidate disqualification would seriously corrupt the probity of Australia’s democracy. At his appearance before the Committee, Electoral Commissioner, Mr Tom Rogers, stated these reasons:
The AEC has a very limited power under the Electoral Act to reject nominations. The power to reject, such as it is, effectively relates to the lodging of forms with the AEC. It's only where those forms have not been completed correctly that the AEC can reject a nomination, rather than based on some deficiency with the qualifications of an intending candidate under section 44.
Ensuring compliance with section 44 of the Constitution is practically complex. Under the Act there are legislative time frames that prescribe the close-of-nominations period that would, amongst a range of other issues, make it virtually impossible for the AEC to check all nominations to ensure compliance with section 44. To give you an idea of the challenge this would pose, at the 2016 federal election there were 1,625 candidates. Under section 175 of the Electoral Act the declaration of nominations must occur 24 hours after the close of nominations. Ballot papers are then finalised and printed almost immediately afterwards in order to allow for early voting that starts a couple of days later. That fact restricts the time available to conduct such checks to a matter of hours rather than days. Additionally, there is no reliable, complete and up to-date database available for the AEC to verify information relating to section 44. Accordingly, it wouldn't be possible for us to conduct comprehensive candidate eligibility vetting within the time frames that I've just outlined.
Mr Rogers also stated:
the AEC should not be the arbiter of a candidate's eligibility. The AEC's reputation for conducting high-integrity federal elections is founded on its apolitical nature. If the AEC were given the power to veto a candidate's nomination based on a determination of ineligibility under section 44, the AEC would risk perceptions of political partisanship. Additionally, it's likely that candidates would seek to challenge an AEC determination of ineligibility in the courts.
Professor Graeme Orr agreed that the AEC would be accused of partisanship, if it ‘refused someone's nomination in any situation that wasn’t crystal clear, like a registry of bankruptcy.’
If the AEC were given the power to veto a candidate’s nomination based on a determination of ineligibility under s. 44, the AEC would risk perceptions of political partisanship. Additionally… candidates would seek to challenge an AEC determination of ineligibility in the courts.
Professor Rosalind Dixon commented that where a person’s ancestry is debatable or there are complex family situations, the only way to conclusively determine the question is ‘an affirmative determination by the High Court’.
Ms Lorraine Finlay further highlighted the reputational and practical difficulties the AEC would face given a role in vetting potential candidates:
It is vitally important that the AEC is seen to be independent and impartial in the way it conducts elections, and there is a real risk that this could be undermined if they were asked to provide legal advice to candidates or to perform any type of vetting function. Similarly, there is a risk whenever legal advice is given that it could lead to subsequent legal challenges, or leave the AEC open to criticism were they to give in correct advice. This must be considered a real risk in these circumstances given the uncertainty that has recently surrounded the interpretation of s. 44. It would also be entirely impractical to ask the AEC to conduct ‘s. 44 checks’ on nominated candidates, given the sheer number of candidates and the short time-frame between the close of nominations and the subsequent steps in the election process.
Associate Professor Luke Beck commented that verification would be too onerous and complicated for any Commonwealth agency to complete. The Committee notes that additional resourcing would be required to set up a separate agency, or expand an existing government department. In addition, if an existing department were given this responsibility, there could be a perception that the department could be influenced by Ministerial or executive direction.
The High Court decision in Re Gallagher made it clear that, unless the foreign citizenship laws effectively prevent renunciation, it is not sufficient to merely take steps towards renunciation before nomination. Any clearance process would therefore need to be completed well before the date of nomination, to allow a prospective candidate to complete any renunciation process before nomination. Particularly complex renunciation processes could take months or even years before renunciation is effective.
A vetting process would be impossible to complete in the time between the writs for an election being issued, and the close of nominations. It is also not clear who should bear the cost of vetting. If it is decided that the cost should be borne by candidates, it would discourage anyone but those with significant resources from standing for election.
Continuous disclosure on a register
In late-2017, the Senate and House of Representatives resolved to require Senators and Members to disclose information relevant to s. 44(i) to reveal any cases of potential foreign citizenship. Ms Lorraine Finlay submitted that the registers should become a standard feature in future and supplemented with an independent audit. Mr Tony Magrathea said Parliament should investigate all allegations relating to potential disqualifications.
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 (See Appendices D and E).
Professor Tony Blackshield observed:
One of the most distressing features of last December’s ‘Citizenship Register’ was the number of members who were genuinely unable to give details of the place and date of birth of their parents, grandparents and spouse; and particularly poignant was the number of people with Indigenous ancestry for whom that was wholly impossible. In those cases, the possibility of dual nationality cannot be conclusively excluded; but neither can it be conclusively proved.
A joint submission from Professor George Williams, Dr Sangeetha Pillai and Mr Harry Hobbs said the registers could be improved; for example:
Parliamentarians are not currently required to disclose the citizenship of their parents, grandparents or spouses.
The declarations ‘lack a supporting process’ or practical consequences for failing to provide documentary evidence.
Their submission also noted that there is no process for disclosing offices of profit or pecuniary interests. The submission added that administrative measures cannot overcome the absence of clarity in s. 44, something which ‘can only be achieved through constitutional change following a successful referendum.’
Professor Jeremy Gans said the registers included ‘curious cases’ where letters requesting citizenship renouncement were supplied–but not an authoritative letter or document to confirm the renunciation was ever granted.
Mr Simon Cowan said there needs to be a contradictor to review the information in the registers. He said the Australian Electoral Commission is the ‘obvious choice’ in the first instance and should be given the power and resources to fulfil this role.
Option 3–Legislative and procedural reforms
Legislative and procedural options proposed or discussed in the evidence included the following:
A grace period or delayed High Court referral for potentially disqualified parliamentarians.
Avoiding High Court referral.
Increasing the severity of penalties in legislation and improving compliance.
Legislating to allow the automatic foreign citizenship renunciation.
Establishing a federal integrity commission.
A grace period or delayed High Court referral
The decision to refer a Senator or Member to the Court of Disputed Returns ultimately rests with the House in which the question arises. Odgers’ Australian Senate Practice states:
Each House of the Parliament has the power to determine its own constitution, in so far as it is not determined by constitutional or statutory law.
House of Representatives Practice states:
Each House functions as a distinct and independent unit within the framework of the Parliament. The right inherent in each House to exclusive cognisance of matters arising within it has evolved through centuries of parliamentary history and is made clear in the provisions of the Constitution.
A number of witnesses and submissions discussed whether the Senate and the House of Representatives could utilise s. 47 of the Constitution to retain firmer control over referrals to the High Court (sitting as the Court of Disputed Returns). This would involve Parliament deliberately delaying the referral of Senators or Members and giving anybody in doubt a chance to remedy their disqualification.
Until the Parliament otherwise provides, any question respecting the qualification of a senator or of a member of the House of Representatives, or respecting a vacancy in either House of the Parliament, and any question of a disputed election to either House, shall be determined by the House in which the question arises.
Associate Professor Luke Beck observed that the Electoral Act could be amended so that referrals from Parliament to the Court of Disputed Returns are less straightforward. For example, the presentation of legal advice to Parliament could be made a pre-condition of a referral to the Court.
Professor Graeme Orr said that a ‘path of extreme compliance’ has led Parliament to outsource many cases to the High Court for a decision. He explained that parliamentary privilege could be utilised to allow amnesties or leniency:
How you use that ancient power is up to you. For instance… MPs who had acted reasonably and not deliberately taken on conflicts of interest, whether with another country or a public office, could have been given time to resolve the issue.
Professor Orr commented that his proposal is potentially tenable in a legal sense, but added that he did not know if it might be a viable political option. Professor Orr said the focus should be on parliamentarians who have an ‘unresolvable continuing disqualification’.
Petitioning the Court of Disputed Returns using the Commonwealth Electoral Act 1918
353 Method of disputing elections
(1) The validity of any election or return may be disputed by petition addressed to the Court of Disputed Returns and not otherwise.
355 Requisites of petition
…every petition disputing an election or return… shall:
(a) set out the facts relied on to invalidate the election or return;
(e) be filed in the Registry of the High Court within 40 days…
Mr Michael Maley PSM suggested Parliament could use powers in the Constitution and legislate to create a scheme ‘for getting qualification issues before the Court at the start of the Parliament, in a way which would not be open to accusations of partisan manipulation.’ He submitted that this would encourage candidates to complete due diligence before completing the nomination process, ‘thereby minimising the prospect of subsequent and ongoing disruption of the parliamentary process.’
Ms Lorraine Finlay submitted that scope exists to clarify the circumstances leading to referrals from the Parliament to the Court of Disputed Returns. Her submission explained:
It may be useful to consider whether providing internal referral guidelines, or even some independent mechanism to assess whether referral is warranted in an individual case, would provide for a more transparent process that ensures Parliament focuses on the legal issues rather than political factors when considering referrals.
Professor Orr commented that Parliament could establish a tribunal or committee to make preliminary assessments on whether potentially ineligible Senators or Members should be referred to the Court of Disputed Returns.
It has recently been suggested that the establishment of such a tribunal may provide a legislative mechanism for Parliament to influence the interpretation of the Constitution, thus avoiding the need for formal Constitutional amendment. In relation to s. 44(i) she commented that ‘this could influence the Court’s understanding of what constitutes “reasonable steps” under the current test.’ This assertion remains untested however, and ultimate jurisdiction to interpret the Constitution remains with the High Court.
The Senate appointed a committee for this purpose in the past, although this practice was discontinued.
A joint submission from Professor Rosalind Dixon, Associate Professor Appleby and Mr Lachlan Peake posed an option of amending s. 44 to allow a grace period:
…language could also simply be added to end of s 44… so that it reads something like:
‘… and does not within 3 months of being elected take all reasonable steps to renounce, discharge or discontinue this foreign citizenship; bankruptcy or insolvency; office of profit, pension, or pecuniary interest … shall be incapable of taking their seat as a member of Parliament.’
Reviving Parliament’s powers
Several witnesses recognised that an option exists to revive Parliament’s powers in s. 47, but cautioned against pursing this course, mainly because it would not restore public confidence and could undermine trust in the political system. Professor Twomey submitted:
Any actions of the Houses… to limit access to the Court of Disputed Returns in order to protect and retain disqualified Members and Senators within the Parliament would be likely to bring the Parliament into disrepute. There is an obligation on all parliamentarians to maintain, and not thwart, the application of the Constitution.
Professor Cheryl Saunders said utilising s. 47 would be a ‘very controversial’ option:
One of the reasons the parliament itself abandoned the practice at that stage was that it was being used in a partisan way. You can imagine that the potential to use it in a partisan way is there.
Associate Professor Elisa Arcioni explained that Parliament could not change the law, as a matter of principle, to circumvent the High Court’s ability to interpret the Constitution. She suggested the Court may find ways to preserve its role. Professor Helen Irving said that legislation cannot be ‘amended in such a way as to deprive the High Court of its power to interpret the Constitution.’ She said Parliament cannot rule on the meaning of the Constitution and noted the High Court’s view that s. 47 ‘must be construed in its constitutional setting.’ Professor Irving said:
It would be implausible to repeal the relevant sections of the Judiciary Act in order to get around the issue of the High Court's jurisdiction over eligibility for parliament. … It would be technically possible but politically outrageous...
Professor Tony Blackshield agreed that this would be an ‘outrageous thing to do, but it would be possible.’
Professor Matthew Stubbs cautioned against reducing the Court’s role:
I think that would be a mistake. The independent umpire in this process is a valuable one, and I don't think that it would in fact serve the interests of the parliament or the people for parliament to be required to sit and determine these matters itself.
Simplifying High Court referral
In contrast to options to reduce referrals to the High Court and permit leniency, some submissions proposed amending legislation to allow a Senator or Member’s right to sit in Parliament to be more easily challenged. Mr Colin Lynch submitted:
Only the risk of suits from individual citizens will incent[ivise] parliamentarians to carefully respect the legal requirements of s. 44.
A private individual can lodge a petition with the Court of Disputed Returns within a 40-day time limit. Petitions are not limited to a candidate’s qualifications under the Constitution, and can be lodged on any matter that might invalidate an election or return. Outside of the 40 day time limit, referrals can be made to the Court from either the Senate or House of Representatives.
A person can also lodge a petition under the Common Informers (Parliamentary Disqualifications) Act 1975, on the grounds that a sitting Senator or Member is disqualified. As noted in Chapter 3, the recent decision by the High Court has restricted the scope of common informers actions. By deciding that the Common Informers Act did not confer jurisdiction on the High Court to determine qualification under s. 44, this decision has removed the option for using this Act to bring questions of qualification before the High Court.
Increasing the penalties to improve compliance
Some submissions recommended increasing penalties for candidates falsely declaring eligibility at nomination or parliamentarians who receive a salary and allowances while ineligible. The Australian Monarchist League condemned the ‘cavalier disregard the political elite have shown towards the Constitution’ and recommended increasing the penalty in the Common Informers Act. The League also favoured amending the Constitution to ban an ineligible Senator or Member from sitting in Parliament for six years.
Mr Allan Laws said ‘ignorance is no excuse’, falsifying nomination forms is criminal and the lack of prosecutions is a ‘disgrace’. Mr Brian Capamagian submitted that ‘life imprisonment would be a very strong deterrent.’ Mr John Reeves Taylor submitted:
Given that no previous candidate has been prosecuted and no agency is investigating or enforcing the penalties related to false statements and declarations it will always remain an option for the deceitful candidate to falsely declare that they are not rendered ineligible by s44 and slip under the radar as it were. We are all left to wonder how the lack of enforcement in the past may have contributed to our current situation.
Dr John Cameron said that if a Senator or Member is potentially disqualified, they should be given two options:
resigning and being replaced;
having their case referred to the Court of Disputed Returns ‘at their own expense and paying the costs… if unsuccessful.’
Dr Cameron said nomination forms should be promptly made public so the likelihood of a challenge can be ascertained before or immediately after a candidate is declared elected.
Legislation for the automatic renunciation of foreign citizenship
In 2000, the Electoral Matters Committee recommended a constitutional amendment to make automatic renunciation possible. During the current inquiry, a number of submissions supported automatic renunciation.
Mr Greg Northover submitted that foreign citizenship renunciation could be automated with the candidate’s consent:
The Parliament is able to legislate to amend the Electoral Act so that candidate nominations include foreign citizenship screening. Automatic renunciation of any foreign citizenship should be a corollary of this and be built into the nomination system. An Australian unilateral Instrument of Renunciation should be developed in consultation through all diplomatic channels.
Mr Northover added that the screening process would reduce the risk of a candidate with inherited foreign citizenship being elected.
Ms Margaret Hurle submitted that Australia could ‘make its own law’ so allegiances could be repudiated prior to the declaration of the poll. Mr Allan Laws submitted:
This can easily be fixed by changes to the citizenship act and the nomination form. … Simple fix add a question to the nomination form listing all passports current and expired passports.
Mr Graham Rayner submitted that there should be a standard procedure for renunciation. Some witnesses suggested Australia should negotiate with foreign governments to have these renunciations recognised as having precedence over their own laws.
A number of legal academics observed that an automated renunciation is not possible, because the procedure for renunciation depends on the operation of foreign laws.
Professor Helen Irving said the High Court had considered whether taking a naturalisation oath is sufficient to renounce foreign citizenship and ‘found that this was insufficient and did not amount to a renunciation.’
Associate Professor Luke Beck submitted:
…Parliament cannot legislate to reduce the risk of ineligibility. The High Court has made it very clear that whether a person is a citizen of a foreign country is a function of foreign law. The Australian Parliament cannot legislate to alter the law of foreign countries.
Professor Anne Twomey submitted:
Any attempt to deem foreign law as having a different effect or to deem renunciation as having occurred in certain circumstances, would appear to amount to the creation of a fiction to thwart the application of the Constitution and would therefore be unlikely to survive scrutiny by the High Court.
Professor Twomey added that if s. 44 were removed, ensuring sole allegiance to Australia could be achieved by amending s. 42 of the Constitution, so the oath or affirmation made at the commencement of a new parliament must include a renunciation. This procedure would only affect successful candidates–‘not all candidates prior to nomination.’
Every senator and every member of the House of Representatives shall before taking his seat make and subscribe before the Governor‑General, or some person authorised by him, an oath or affirmation of allegiance in the form set forth in the schedule to this Constitution.
Professor Twomey said that disqualification for taking active steps to acquire citizenship or rights would avoid unexpected disqualifications. Mr Victor Perton submitted:
I am the child of ‘stateless’ refugees who arrived in Australia. Their countries had been illegally incorporated into the Soviet Union. Under Soviet law, I was a citizen of the Soviet Union and this was not renounceable. I served 18 years in the Victorian Parliament and no one ever suggested that my patriotism nor my performance was affected by my entitlement to Soviet citizenship.
Two submissions suggested repealing laws allowing for Australians to be dual citizens. Professor Twomey cautioned that the implications of this change could be problematic:
If someone gets citizenship by descent does that automatically mean they're not an Australian citizen? …then it would mean that a whole lot of people born here were never Australian citizens. It could be quite awkward.
Dr Anthony Moran said:
Critics of dual and multiple citizenship have argued that it's dangerous for social cohesion and for national identity. I don't think that such critics have been able to show this for either of those things. For example, even though Australia has a large number of dual citizens, Australia is widely regarded as a very socially cohesive country.
Dr Moran said this has been demonstrated in the Scanlon Foundation’s reports on mapping social cohesion.
Establish a federal integrity commission
Several submissions reasoned that the objectives in s. 44 could be addressed (at least in part) by establishing a federal integrity commission.
Associate Professor Gabrielle Appleby, Professor Rosalind Dixon and Mr Lachlan Peake jointly submitted that s. 44 is intended to ‘reduce the probability that members of parliament will act in a corrupt manner’ and, in particular, ‘to reduce the possibility of a conflict of interest caused by holding another public office or a pecuniary interest.’ Their submission stated:
…a federal integrity commission would have a number of advantages in dealing with conflicts of interest over the constitutionally entrenched disqualification mechanism…
These advantages included the ability of an integrity commission to investigate, detect serious corruption and obtain documents. Professor Tony Blackshield said s. 44 exists to regulate conflicts of interest, by identifying ‘categories of persons or situations’ where conflicts might be presumed. He said:
…the most effective way of assessing that kind of possibility is precisely through the kind of integrity commission that is now being proposed. So I would now say: let's get rid of s. 44 altogether and have an integrity commission instead.
Professor Dixon said repealing s. 44 would lead to ‘calls for some kind of federal integrity body capable of dealing with concerns of that kind’. She said the work of an integrity body could be linked to the qualification requirements, so a person subject to an adverse finding may be prevented from sitting in Parliament.
Mr Simon Cowan (Centre for Independent Studies) said allowing an integrity commission to control who is eligible, rather than the High Court, would create uncertainty and had other public policy implications. He said:
What we are basically doing is taking a circumstance which we don't think completely covers the ground, reinventing it in a completely different way, with a number of other negative consequences.
Others observed that s. 44 does not necessarily regulate all potential conflicts of interest or undue external influences in Australian politics. Professor Anne Twomey commented that ‘factors such as political donations and the like are of greater concern than citizenship of another country.’ Professor Graeme Orr said:
I think when it comes to parliamentary ethics… you really should be focusing on actual real conflicts of interest dealing with money or substantive overseas ties, and so on.
Professor Alex Reilly said that foreign influence should not be confused with foreign citizenship. He said:
By its very nature, foreign citizenship poses no risk to the parliament and should not render a person ineligible to run for parliament. On the contrary, the relationship dual citizens have with other nations may be of benefit to the parliament and its deliberations.
Professor Rosalind Dixon said a person eligible to sit in Parliament could have ‘substantial conflicts of interest and integrity problems’ unrelated to the grounds for disqualification in s. 44.
Option 4–Amend s. 44 to allow the Parliament to set the rules for disqualification
A number of witnesses proposed Constitutional amendments combined with legislative change:
Amend s. 44 by inserting the words ‘until Parliament otherwise provides’ and subsequently legislate the grounds for disqualification.
Repeal s. 44 and place greater reliance on s.34 and subsequently legislate to expand qualification requirements.
Amend s. 44 among a package of reforms to related sections of the Constitution; for example, ss. 16, 34, 42, 45, 46 and 47.
These proposals are discussed in the sections below. Some witnesses and submissions presented their preferred solution and supplemented this with secondary alternatives for the Committee to consider.
‘Until Parliament otherwise provides’
Section 44 could be amended by adding the words ‘until Parliament otherwise provides’. Associate Professor Luke Beck submitted:
The most convenient constitutional amendment is one that allows Parliament to legislate the grounds of disqualification rather than having the grounds of disqualification set in stone in the Constitution. s. 44 should be amended to insert the words ‘Until Parliament otherwise provides’ at the start of the provision.
A joint submission from Professor George Williams, Dr Sangeetha Pillai and Mr Harry Hobbs supported this approach:
The benefits of this are twofold: it offers a durable solution by enabling the criteria to be progressively updated to reflect changing community standards or practical realities, and it forces Parliament to justify why change is needed when any such updates are proposed.
Dr Pillai said this would place s. 44 in line with the qualification criteria in
s. 34. Dr Hal Colebatch supported such an amendment, submitting:
This would make the question clear: that the place for determining both qualifications and disqualifications should be the national parliament, not the High Court or foreign governments.
Professor Kim Rubenstein submitted:
The simplest way to remedy the s.and enable these matters to be debated fully by Parliament, is to seek a Constitutional change that introduces into s. 44 and s. 45 the words that begin s.46 and 47–Until the Parliament otherwise provides.
Option 5–Repealing s. 44
Some submissions favoured repealing s. 44 to achieve a similar outcome. Professor Rosalind Dixon, Associate Professor Gabrielle Appleby and Mr Lachlan Peake proposed:
…repealing s. 44 in its entirety, and enacting a number of new disqualifications by way of ordinary legislation under s. 34 of the Constitution, which allows for the Parliament to make laws affecting the qualifications of Members of Parliament.
The submission also supported:
Repeal of the ‘ancillary provisions’ in ss. 45 and 46 and repeal of the Common Informers Act.
Retention of the petitioner action in ss. 353 and 355 of the Commonwealth Electoral Act, although this could be amended ‘to allow for petitions to be brought outside the period of 40 days after the return of the writs in circumstances where the High Court has given leave.’
Professor Rosalind Dixon said that demonstrating loyalty should remain an important factor:
s.42 and the loyalty oath it requires would need to play a greater role in our public debate and imagination. We would need to emphasise that loyalty is a critical part of service in the parliament and that s.42 would be need to be given an amplified significance.
Associate Professor Matthew Stubbs and Dr Adam Webster supported repealing s. 44. Their submission stated:
the general principle should be that a person who is capable of voting is capable of being elected to the Parliament, subject to… the prospective inability of a candidate to attend Parliament.
The submission noted that imprisonment may be a reason for failing to attend Parliament and, accordingly, the Electoral Act could be amended to disqualify prisoners from nominating as candidates. The submission added that the Electoral Act could require broader candidate information to be disclosed, allowing voters to ‘take this into account in deciding how they wish to vote.’
Professor Alex Reilly favoured the complete repeal of s. 44. He said:
Given that it has no sensible work to do, it should be easy to garner bipartisan support for its removal and to persuade the vast majority of the Australian people to vote in favour of its removal at a referendum.
Professor Tony Blackshield said s. 44 should be ‘simply struck out altogether’ or amended to include the words ‘until the Parliament otherwise decides’. He said:
…the concerns that are thought to warrant disqualification are so inherently subject to change that the regulatory structure should be flexible and therefore whatever provisions we make about qualification should be embodied in the Electoral Act rather than the Constitution so that they can be readily modified by the parliament from time to time.
Professor Blackshield added that in his view, ‘every Australian should be entitled to stand for parliament’ and the suitability of criminals and bankrupts ‘should be left to the electorate, rather than any rigid rule.’ Mr Simon Cowan, who did not support amending s. 44, countered that this ‘assumes the electorate has perfect knowledge.’
Associate Professor Elisa Arcioni expressed views similar to Professor Blackshield. She noted that foreign citizenship is linked to security concerns, which is addressed in other laws:
Our citizenship legislation has always included a provision whereby persons who fight in a foreign-enemy military automatically lose their Australian citizenship and therefore are not eligible to be members of parliament. Amendments to our citizenship legislation in late 2015 have extended loss of citizenship to dual nationals who fight in a terrorist organisation or engage in other terrorist acts.
Mrs Lorraine Finlay said that in its current form, s. 44 provides ‘certainty, consistency and stability’ and removes partisan considerations. She also noted that s. 44 relates to more than citizenship:
…it seems a little bit difficult to formulate an argument that, for example, someone should only be disqualified for treason until parliament otherwise provides.
Mr Neil Cotter did not support this approach and cautioned against allowing Parliament writing its own rules. He submitted:
Watering down the paragraph will not address the fundamentally undemocratic nature of how it disqualifies citizens… Parliamentarians should not have any influence on who gets to stand for parliament, it is an inherent conflict of interest that should be avoided.
Mr Simon Cowan cautioned that Australians may not favour allowing Parliament to determine the rules for eligibility. He said the ‘response to the treatment of expenses amongst parliamentarians’ could be indicative.
Broader Constitutional amendments
Professor Anne Twomey said that ss. 34, 44 and 45 could be reformed as a package. She submitted that there is ‘no necessity’ in her view to amend s. 44(i), but if a referendum were held:
…it would be wise to deal with the other anomalies in s 44 and, indeed, in s 45 and the qualification provision in s 34. In my view there are far greater uncertainties concerning s 44(iv) (office of profit under the Crown) and s 44(v) (government contractors) than there are in relation to s 44(i) (foreign allegiance).
Professor Matthew Stubbs said ‘there should be no difference in principle between the qualifications to vote and the qualifications to be elected.’
A joint submission from Professor Rosalind Dixon, Associate Professor Appleby and Mr Lachlan Peake (who proposed repealing s. 44) outlined four broader reforms:
introduction of a statutory mechanism for ensuring integrity of parliamentarians in the form of a federal integrity/anti-corruption commission;
an expansion in the statutory grounds for disqualification under the Commonwealth Electoral Act 1918 (Cth);
a greater emphasis on and reliance on the loyalty requirements of s 42 of the Constitution; and
an amendment to the process for determining qualification, particularly in periods more than 40 days after the return of the writs.
Mr John Gilly submitted that s. 44 is symptomatic of the ‘many problems’ in the Constitution generally. He recommended re-writing the whole Constitution. Mr Rewi Lyall suggested that there should be ‘a thorough discussion about a new Constitution’ and focussing solely on s. 44 would ‘constitute a self-serving exercise by Australia’s political elite.’
The referendum process
If any part of the Constitution is amended or repealed, it must be done through the change process in the Constitution itself. This requires a referendum.
s.128 of the Constitution outlines the process for a referendum:
Both the Senate and House of Representatives need to agree on the form of the question.
The electors in a majority of States (four out of six States) must approve the proposal and a majority of overall electors who voted.
This Constitution shall not be altered except in the following manner:
The proposed law for the alteration thereof must be passed by an absolute majority of each House of the Parliament, and not less than two nor more than six months after its passage through both Houses the proposed law shall be submitted in each State and Territory to the electors qualified to vote for the election of members of the House of Representatives. …
When a proposed law is submitted to the electors the vote shall be taken in such manner as the Parliament prescribes. …
And if in a majority of the States a majority of the electors voting approve the proposed law, and if a majority of all the electors voting also approve the proposed law, it shall be presented to the Governor‑General for the Queen’s assent. …
Many past referendum questions have failed to gain the necessary support. For a referendum to be defeated, the ‘No’ vote would need to be over 50 per cent in at least four of the six states. The sum of ‘No’ votes in the four smallest states is around 3.2 million people or 19.8 per cent of the Australians who are enrolled to vote.
Hamilton Stone consulting submitted that referendums have failed for being ‘poorly conceived’, but are more likely to pass when:
There is bipartisan major-party support for the change;
Most state premiers are either supportive of, or unconcerned by, the proposal (and, by implication, the proposal does not seek greater Commonwealth power at the expense of states);
There is community understanding of the reason for change;
The referendum question does not combine multiple changes in a single question; and
There is not a highly organised, high-profile and credible force opposing the change.
Dr Hal Colebatch submitted:
…few things would do more to restore the standing of parliament than to give it the opportunity to show its capacity to act resolutely to deal with a recognised problem.
Professor George Williams outlined the reasons referendums tend to fail:
In the main, they’re very often not sensible proposals; they’re seeking to shift power from the states to the Commonwealth, and so some states disagree. They’re often ill thought out and seemingly not responding to an important problem, so there’s no urgency connected to them; whereas, on this occasion, all of those factors are absent.
Professor Kim Rubenstein cautioned against amending the text within s. 44, saying there is ‘the danger, even if it is bipartisan, of there being different views about how it should be amended.’ Professor Blackshield agreed that this approach would lead to disagreement over the desired language.
While favouring constitutional amendments, Professor Cheryl Saunders commented that critics would argue parliamentarians are only concerned with their own interests. She added that the ‘impression of self-interest will be heightened if priority is given to this issue while others, such as Indigenous recognition, are seen to be ignored.’ She said a referendum stands a better chance when Australians know there is a ‘real problem’.
Professor Matthew Stubbs said the problems in s. 44 should be explained directly. He said there is a risk that constitutional amendment to include the words ‘until Parliament otherwise provides’ could be viewed as making a change ‘though the back door’.
Dr Anthony Moran said that as a first step, people need to understand the restrictions to parliamentary service. He said:
…I'm sure that a lot of people just wouldn't even know about all those restrictions. No-one reads the Constitution; they just don't. They probably might find out when they nominate to stand or they try to fill out the form. They might not even know then.
Professor Alex Reilly said he expected the majority of people to recognise that s. 44 is ‘exclusionary’ and affects ‘our identity as Australians’.
Mrs Lorraine Finlay cautioned that a referendum might not succeed. She said there is ‘a perception… that at least some of the responsibility for the current s. 44 issues lies in the hands of our politicians.’ Mrs Finlay added that a referendum campaign could enliven ‘questions of multiculturalism and diversity and the value that dual citizens bring to Australia.’ She said it could become ‘very political and lose sight of the constitutional significance of the issues.’
Professor John Williams commented that amending s. 44 would have the effect of overturning the High Court’s decisions. He noted that the High Court is ‘an institution which is held in very high regard in Australia’.