5. Committee view

Overview

5.1
This inquiry has taken the Committee on a complex and challenging journey. The Committee now considers that the current problems caused by s. 44 are wide-ranging and have significant and detrimental implications for, and impact on, Australia’s democracy.
5.2
Australia has an inclusive and cohesive democracy with high levels of political participation. Today our parliamentarians have come from many walks of life to represent their fellow citizens in our unique Australian democracy.
5.3
A robust and well-functioning democracy requires that all qualified citizens are able to nominate for election on an equal basis - with as few barriers to nominating as possible. The Committee believes it should be up to voters themselves to determine the qualities they want to see in their elected representatives.
5.4
The Committee considers that s. 44, as it currently stands, prevents and discourages a significant percentage of Australian citizens from seeking elected office in our federal Parliament.
5.5
The Committee agrees with the intent of s. 44. At the time of drafting the Constitution, s. 44 was intended to protect parliamentary integrity and national sovereignty. The Committee’s view is that although these principles are equally important today as they were drafted in 1901, s. 44 no longer operates as intended.
5.6
Therefore the Committee believes that ss. 44 and 451 should be repealed in their entirety, or amended to include ‘until the Parliament otherwise provides’. The Committee also believes that s. 34 of the Constitution should govern both qualifications and disqualifications for Parliament. In practice, this means the rules that govern who can and cannot be elected will be set out in contemporary legislation, capable of being updated and amended to reflect contemporary Australian community expectations and standards.
5.7
However, 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 also recommends that the Government take specific early measures to improve the compliance with s. 44 in these elections.
5.8
These measures, outlined under the heading ‘Early Measures’ in Chapter 4, include full disclosure of relevant information by candidates at the time of nomination, and Parliamentary agreement to limit the referral of the successful candidates if any future breaches are alleged.

Underlying principles

5.9
Senators and Members must be free from any possibility of conflict of interest (or perceived conflict of interest) that may affect their legislative duties. The qualification requirements are one part of ensuring that Members and Senators will make decisions unaffected from their own financial interests or allegiances.
5.10
The Committee also considers that all citizens should have an equal opportunity to nominate for election. The Committee believes that candidates in elections should represent the diverse nature of Australian society. Segments of the population should not be unreasonably or unnecessarily excluded or discouraged from the nomination process.
5.11
The Committee further considers there should be requirements or qualifications for citizens to enter Federal Parliament that meet contemporary expectations and that this, and future generations, should be able to debate and set those expectations.

Allegiance

5.12
The Committee agrees that Federal Parliamentarians must be loyal to Australia and must make decisions that are in the best interests of Australia and no other country. Australian citizenship is an essential pre-condition of sitting in the Federal Parliament.
5.13
The Committee acknowledges the point of view that holding dual citizenship does not in and of itself result in a conflict of interest; and a citizen with sole Australian citizenship does not necessarily have sole allegiance to this country. After considering significant evidence for and against, the Committee does not form a conclusion as to whether dual citizenship is, in itself, a sign of conflicted allegiance.
5.14
What is clear is that the operation of s. 44(i) allows the laws of other countries to create dual citizenships without the knowledge or consent of Australian citizens, or any active steps being taken by Australian citizens to accept that conferral of citizenship. Section 44 creates an ongoing cloud of uncertainty over those who have parents, grandparents or spouses born overseas. This cloud also covers those who do not have documentation about their family, including Indigenous Australians.
5.15
Because foreign citizenship laws can and do change, the evidence before the Committee suggests that only those with documented generations of wholly Australian forebears can be completely assured of their citizenship status for the duration of their parliamentary term. This creates two classes of Australian citizens for the purposes of engaging in representative democracy. The Committee considers that this is an unacceptable situation for Australian democracy.
5.16
These concerns can be overcome by properly drafted legislation, under the auspices of s. 34, following public consultation. If Australians decide that dual citizenship is not suitable for federal Parliamentarians, then legislation can ensure that the barrier placed by the qualification is on election not nomination, is not unreasonable, and can specifically allow for difficult or unusual situations. If it is decided that dual citizenship is not a barrier, then future legislation can set out sensible alternative ways of ensuring allegiance. Ultimately it is about ensuring allegiance –and not about citizenship alone.

Financial conflicts of interest

5.17
The Committee agrees with the principle that a Parliamentarian must make decisions free from consideration of her or his own financial benefit. Parliament is both an oversight and a check on the power of the executive government. It is important that Parliamentarians are not doing business with the executive and are not in its paid employment.
5.18
However the current provision requires any government employee–state, federal or local–to leave their job at the time of nominating for election. It also requires anyone who was unsuccessful for the Senate to decline government employment for the time they may be called upon to fill a vacancy in the Senate. For most Australians, denying themselves access to any public sector employment for up to six years is unreasonable and unfair.
5.19
The complexity and scale of Commonwealth government economic interests in 2017 were not foreseeable to the drafters of the Constitution in 1901. The Committee considers that modern legislation is needed, clearly setting out what are and are not acceptable pecuniary interests, to ensure the financial integrity of federal Parliamentarians. The Committee considers that this will give crucial guidance and certainty.
5.20
The Committee is also of the view that the requirement to divest a financial conflict of interest should be at a later point, such as the time of swearing in to Parliament, rather than at nomination. This would continue to prevent financial conflict of interest while elected; but would allow government employees or business owners to contest an election without unnecessarily rearranging their affairs.
5.21
Moving the qualification time would also remove any problems caused by potential disqualification of unsuccessful candidates. The Committee was concerned to hear evidence that a successful qualified candidate may have his or her election challenged on the grounds that preferences had come to that candidate from an unsuccessful unqualified candidate. Moving the qualification point from the point of nomination would mean there is no such thing as a ‘disqualified’ candidate, avoiding uncertainty and confusion.
5.22
Again, the Committee believes that this can be dealt with by further Parliamentary debate under s. 34.

Requirement for constitutional change

5.23
After carefully considering the issues, the Committee believes that there is no viable alternative other than amending the Constitution. The Committee considers that the most straightforward and effective way to address the issues identified by this inquiry into s. 44 is by repealing ss. 44 and 45, or by inserting the words ‘Until the Parliament otherwise provides’ into both sections. This would leave the Parliament to enact legislation–that reflects modern community standards–governing both qualifications and disqualifications for Federal Parliament, under s. 34 of the Constitution.
5.24
The Committee accepts the argument that those standing for election have a responsibility to ensure that they are properly qualified to do so. The Committee considers that this responsibility has not always been taken sufficiently seriously in the past.
5.25
However the Committee does not believe that a sufficient solution is to put in place administrative assistance, such as using the AEC to assess the eligibility of potential candidates. The Committee considers this option would not be an effective use of public funds when any ‘clearance’ would continue to disadvantage people who do not have documentary family history, and would still be open to change by the citizenship laws of foreign powers. It would also still ultimately be open to challenge and final decision in the High Court.
5.26
The Committee is also unconvinced by the argument for unilateral blanket renunciation of foreign citizenships. While this solution is appealing, the Committee accepts the concerns given in evidence that it is unlikely to be effective due to the complexity of foreign citizenship laws, and the High Court’s statement that a unilateral declaration is not effective if other renunciation steps can reasonably be taken.2
5.27
The Committee has also considered the argument under s. 47 of the Constitution that Parliament is able to deal with questions of individual qualification without reference to the High Court. Regardless of whether this is a tenable legal argument, the Committee is of the view that it does not accord with the people’s expectations of Parliament. Using s. 47 to allow Parliament to determine whether a particular case falls within s. 44 may fall below the community’s expectations of independence and fairness in the application of the Constitution. But it is an option worth of future community discussion.
5.28
The Committee considers that the qualifications for Parliament should be clearly and simply set out in laws that are unambiguous and of universal application.
5.29
The point at which a person is disqualified from serving in Parliament should also be clearer. Currently, disqualification can occur from candidate nomination. This could be changed to a later date, such as the time of swearing-in to Parliament.
5.30
An equally effective alternative to the repeal of ss. 44 and 45 would be to insert the words ’Until the Parliament otherwise provides,’ to both sections. This would reflect the wording in a number of other sections, including s. 34–‘Qualifications of members’.
5.31
The Constitution’s drafters did not include this clause in ss. 44 and 45 when it is included in other, related, sections, and reflected in s. 51 (xxxvi) which reads:
51. Legislative powers of the Parliament
The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:
(xxxvi) matters in respect of which this Constitution makes provisions until the Parliament otherwise provides; …
5.32
Nonetheless, without amendment to s. 44, the Parliament is powerless to affect any change to its operation to reflect modern community standards.
5.33
By including the phrase ‘Until the Parliament otherwise provides’, the Constitution’s drafters clearly intended to allow Parliament to overwrite the rules in the Constitution.
5.34
Inserting the words ‘Until the Parliament otherwise provides’ would also reflect existing clauses in the Constitution and would remain in line with the intent of the original drafters.

Process of constitutional change

5.35
The Constitution can only be changed by a referendum. As discussed in Chapter 4, a successful referendum for change is challenging in Australia but is not impossible. Successful referendums have been characterised by the pre-conditions set out in Chapter 4. The Committee notes that many of these pre-conditions of change exist in this case. The Committee is of the view that the difficulty of constitutional change should not prevent a concerted effort to repeal s. 44 and s. 45.
5.36
The Committee emphasises that the problems created by s. 44 have had a demonstrable impact on our democracy; by limiting who can stand for election and therefore who Australians can choose to represent them in Federal Parliament. From the evidence received by the Committee, these impacts will not only continue but will increase unless there is constitutional change.
5.37
Should a referendum be successful, it must then be followed by a public, and parliamentary, debate on what constitutes appropriate Parliamentary disqualifications. A referendum process should make clear to voters that the removal or amendment to ss.44 and 45 is a necessary prerequisite to that debate.

Without constitutional change

5.38
The Committee acknowledges that a referendum will not be positively received by Australians and the outcome of any referendum is uncertain. If constitutional change is not put or is unsuccessful, then the Committee recommends that administrative or legislative processes are put in place to mitigate the impact of s.44 on political participation in Australia.
5.39
Specifically, the Committee recommends that the government consider the following strategies:
supporting the Australian Electoral Commission to develop on-line self-assessment tools;
providing additional education and support on the requirements of section 44 to independents and minor parties;
introducing an agreed preliminary step, for the purpose of gathering evidence or taking legal advice, before a referral by a House of Parliament to the High Court on disqualification issues;
exploring the possibility with relevant foreign governments of expedited or automatic citizenship renunciation;
providing further clarification and guidance on the meaning of ‘pecuniary interest’ in section 44;
developing ways to ensure invalid candidates cannot ‘manipulate’ election outcomes.
5.40
As predicted in 20 years of reviews and reports, even if these measures are adopted, the significant issues with the operation of s. 44 will continue, and are likely to grow in significance and impact.

Conclusion

5.41
Section 44 is no longer operating to effectively ensure its principal intent of parliamentary integrity and national sovereignty. Challenges to sitting members will continue into future elections; disrupting electoral outcomes, causing uncertainty and confusion, and having the potential to undermine the authority of both Federal Parliament and the Constitution itself.
5.42
Equally importantly, s. 44 acts as a deterrent for many Australians who are considering actively participating in politics. To fully represent the diversity of those they represent in the Federal Parliament, Australians of all backgrounds must have an equal opportunity to nominate for election. As it stands, s. 44 means some Australians have to jump through more hoops than others to stand in an election–including hoops they do not know exist or hoops that can appear overnight.
5.43
Section 44 has been the subject of many inquiries and much debate over the past 20 years. The problems identified in the report have been long foreseen but remain unaddressed. They are not going away. These issues have to be fixed some time. The Committee considers that time is now.

Recommendations

5.44
The Committee recommends that ss. 44 and 45 are either repealed, or the words ‘Until the Parliament otherwise provides…’ are added into both sections.

Recommendation 1

5.45
The Committee recommends that the Australian Government prepare a proposed referendum question to either:
repeal sections 44 and 45 of the Constitution; or
insert into sections 44 and 45 the words: ‘Until the Parliament otherwise provides…’

Recommendation 2

5.46
If the referendum passes, the Committee further recommends that the Australian Government further engages with the Australian community to determine contemporary expectations of standards in order to address all matters of qualification and disqualification for Parliament through legislation under section 34 of the Constitution.

Recommendation 3

5.47
In the event that a referendum does not proceed or does not pass, that the Australian Government consider strategies to mitigate the impact of section 44 as outlined in this report.

Recommendation 4

5.48
The Committee recommends that the Government consider the implications of this report in the context of the upcoming by-elections, in particular the options outlined in Chapter 4.
Senator Linda Reynolds CSC
Chair
15 May 2018

  • 1
    Section 45 is dependent on s. 44 for its operation.
  • 2
    Sykes v Cleary [1992] HCA 60

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