A. Understanding section 44

Section 44 disqualifications
Meaning and consequences1
Any person who:
(i) is under any acknowledgment of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power; or
Foreign citizens and dual citizens cannot sit in Parliament.
An Australian-born person with Australian citizenship who has acquired foreign citizenship without their own knowledge is disqualified.
Citizenship can be acquired from family members who have migrated to Australia. Around half of Australians have a parent who was born overseas.
(ii) is attainted of treason, or has been convicted and is under sentence, or subject to be sentenced, for any offence punishable under the law of the Commonwealth or of a State by imprisonment for one year or longer; or
Some criminals are disqualified, depending on the crime.
If the crime that carries a potential punishment of one year (or longer) in gaol, the person is disqualified.
(iii) is an undischarged bankrupt or insolvent; or
A person who is unable to pay money to others is bankrupt and disqualified.
The States and Territories have their own legal definition of who is a ‘bankrupt’.
(iv) holds any office of profit under the Crown, or any pension payable during the pleasure of the Crown out of any of the revenues of the Commonwealth; or
A person who works in the public service is disqualified. This can include teachers, police, nurses and soldiers.
They have to resign to be a candidate, with no guarantee of being elected or finding a new job.
A ‘pension’ in this context means a special payment from the Government, not social service payments.
Government Ministers are exempted from the pension rule.
(v) has any direct or indirect pecuniary interest in any agreement with the Public Service of the Commonwealth otherwise than as a member and in common with the other members of an incorporated company consisting of more than twenty‑five persons;
A ‘pecuniary interest’ means some form of financial benefit from doing business with the Commonwealth public service.
The business needs to be ongoing and more than a once-off transaction.
Many businesses have ongoing arrangements to supply goods and services to the Commonwealth.
This could range from garden maintenance to military materiel.
shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.
Elected Senators and Members can be disqualified.
However, disqualification can occur from the point of being chosen for Parliament, before anyone is elected.
The process begins at the point someone nominates to be a candidate and ends when someone ceases to be a candidate.
Senate vacancies are filled by recounting the last election result – so a person could be a candidate for many years after the election period.

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    This report is not intended to be used or relied upon as legal advice.

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