F. Extracts: 1976, 1983 and 1985 Constitutional Conventions

1976 Australian Constitutional Convention

Section 34:
This section should be repealed and some section along the lines that follow should be enacted in its place:
Until Parliament otherwise provides, the qualifications of a member of the House of Representatives shall be as follows: He must be 18 years of age, and must be an elector entitled to vote at the election of members of the House of Representatives, or a person qualified to become such an elector, and must be an Australia citizen.1
Sections 44 and 45:
A number of troublesome questions have arisen under these sections and others could arise. In general, uncertainties about the section have resulted in a cautious approach – perhaps over-cautious. Section 47 of the Constitution, and S. 203 of the Commonwealth Electoral Act enable concrete cases to be referred to the High Court but it could be important to have an advance view of the High Court, especially in relation to persons seeking election, rather than those already elected. For example, possession of dual nationality where the duality did not arise from a conscious act of a candidate might be held to disqualify him under s. 44(i) when the question was subsequently raised. A by-election in such a case could be avoided by an advance advisory opinion. Similarly, difficult questions arise under s. 44(iv) and (v) and s. 45 on which it would be valuable to seek the court’s ruling. Webster’s Case quietened some fears but it was only a decision of a single justice and covered only part of the area.2

1983 Australian Constitutional Convention

There was general discussion of Section 44 and the recommendations of the Senate Standing Committee on Constitutional and Legal Affairs. A motion was moved that the Convention refer the Committee’s recommendations to a sub-committee for inquiry and report.3

1985 Australian Constitutional Convention, Structure of Government Sub-Committee

Section 44(i):
RECOMMENDATION 3
Senate Standing Committee Recommendation concerning Foreign Nationality and Related Matters
The S.S.C. recommended the deletion of s. 44 (i) of the Constitution, and the insertion of a provision in the Commonwealth Electoral Act dealing with declarations by candidates as to non-Australian nationality (see Recommendation 4) at the time of nomination.
The Sub-Committee is in agreement with this Recommendation and the reasoning of the S.S.C., namely that a person should not be disqualified from becoming a Member of Parliament because of unsought dual nationality.
The Recommendation, however, does not deal with a Member who voluntarily acquires another nationality after election. (It is noted that s. 17 of the Australian Citizenship Act only partially deals with the problem). Thus, in order to overcome the situation of a member who voluntarily acquires a second nationality after election continuing to sit in Parliament, the Sub-Committee recommends that a constitutional disqualification be inserted in the Constitution providing for the vacation of a Member’s seat in the event that he ceases to be an Australian citizen, with a general power in the Parliament to deal with other situations as they arise.4

1985 Australian Constitutional Convention

Section 44(i):
That this Convention—
(a)notes the report of the Structure of Government Sub-Committee on the Qualification of Members:
(b)supports in principle the enactment of a constitutional amendment to revise and modernise the provisions governing the qualifications of members of Parliament having regard to the recommendations of the Senate Standing Committee on Constitutional and Legal Affairs and the Structure of Government Sub-Committee; and
(c)expresses the view that a more appropriate formulation of Recommendation 3 of the Sub-Committee’s report could be as follows:
RECOMMENDATION 3
Amend section 44 (i.) of the Constitution so that the sub-section reads:
(i)By his own volition is under any acknowledgement of allegiance, obedience, or adherence to a foreign power, or is voluntarily a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power and retains such rights, privileges and duties. Provided that this sub-section does not apply to a person who is vested with citizenship involuntarily and who has made all reasonable efforts to renounce a foreign citizenship of the allegiance, obedience, or adherence to a foreign power; or”

  • 1
    Proceedings of the Australian Constitutional Convention, Hobart 27-29 October 1976, Melbourne: F. D. Atkinson, Government Printer, p. 206.
  • 2
    Ewart Smith’s Paper on Advisory Jurisdiction of the High Court, in Australian Constitutional Convention, Standing Committee “D”, Vol. II, Appendices, Appendix A, 1982.
  • 3
    Proceedings of the Australian Constitutional Convention, Parliament House, Adelaide, 26 to 29 April 1983, Agenda Item 8A., Qualification of Members, pp. 114-119.
  • 4
    Australian Constitutional Convention, Structure of Government Sub-Committee, Report on Constitutional Qualifications of Members of Parliament, S. R. Hampson, Government Printer Queensland, February 1985, p. 1.

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