Overview
3.1
The previous Chapter sets out the historical and judicial background to s. 44. This Chapter considers the operation of the provision in more detail, and describes the impacts of s. 44.
3.2
The disqualifications in s. 44 were introduced into the Constitution to act as a safeguard to parliamentary integrity and national sovereignty. The Committee heard evidence that although the requirements for these safeguards continue, there have been significant and ongoing concerns for 20 years on the operation of, and potential impacts of the operation of, s. 44; concerns that have now come to pass.
3.3
The Committee finds persuasive the concerns expressed by witnesses about s. 44, and its adverse consequences for Australian democracy. This is discussed further in Chapter 5.
Qualifications in section 34
3.4
Section 34 and s. 44 of the Constitution are inextricably linked, but drafted very differently. Section 34 prescribes the qualifications necessary to be a Member of the House of Representatives or a Senator. Section 34 records the requirement to be over 21 years old and a subject of the Queen.
Section 34 of the Constitution
Until the Parliament otherwise provides, the qualifications of a member of the House of Representatives shall be as follows:
(i) he must be of the full age of twenty‑one years, 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 elector, and must have been for three years at the least a resident within the limits of the Commonwealth as existing at the time when he is chosen;
(ii) he must be a subject of the Queen, either natural‑born or for at least five years naturalized under a law of the United Kingdom, or of a Colony which has become or becomes a State, or of the Commonwealth, or of a State.
3.5
However unlike s. 44, s. 34 provides that the requirements only apply ‘until the Parliament otherwise provides’. This was to allow Parliament to legislate on the qualifications for candidates to ensure that they remained consistent with Australian community standards.
3.6
Parliament has done so in the Commonwealth Electoral Act 1918 (‘the Electoral Act’), which states that a person aged 18 years, who is an Australian citizen and is entitled or qualified to vote can nominate as a candidate for federal elections. These are qualifications that reflect current Australian community standards instead of the dated qualifications in s. 34.
Section 163 (1) of the Commonwealth Electoral Act 1918: Qualifications for nomination
a.
has reached the age of 18 years;
b.
is an Australian citizen; and
i.
an elector entitled to vote at a House of Representatives election; or
ii.
a person qualified to become such an elector;
is qualified to be elected as a Senator or a member of the House of Representatives.
Disqualifications in section 44
3.7
Section 44 of the Constitution provides the rules for disqualification from Parliament. Any person who fulfils the grounds set out in s. 44 is disqualified from ‘being chosen or of sitting’ in Parliament.
Section 44 of the Constitution
Any person who:
iii.
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
iv.
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
v.
is an undischarged bankrupt or insolvent; or
vi.
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
vii.
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;
shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.
But subsection (iv) does not apply to the office of any of the Queen’s Ministers of State for the Commonwealth, or of any of the Queen’s Ministers for a State, or to the receipt of pay, half pay, or a pension, by any person as an officer or member of the Queen’s navy or army, or to the receipt of pay as an officer or member of the naval or military forces of the Commonwealth by any person whose services are not wholly employed by the Commonwealth.
3.8
The intent of s. 44 is to protect the integrity of the Parliament by disqualifying any person who is (or could be) at risk of allowing conflicts of loyalty or undue external influence to affect their performance as Senators and Members of the House of Representatives.
3.9
Unlike other sections of the Constitution on the operation of the Parliament, there is no ability for Parliament to alter the grounds for disqualification in
s. 44. Australian citizens are the only ones with the power to amend this section. A referendum (a national vote) would be required.
3.10
In summary, s. 44 has five grounds for being disqualified from Parliament:
s. 44 paragraph (i): foreign citizenship and allegiances;
s. 44 paragraph (ii): treason and punishable offences;
s. 44 paragraph (iii): bankruptcy and insolvency;
s. 44 paragraph (iv): holding an office of profit under the Crown; and
s. 44 paragraph (v): having a pecuniary interest with the Commonwealth Public Service.
Table 3.1: The purpose of section 44 disqualifications
|
|
National security; ensuring allegiance and undivided loyalty to Australia.
|
|
|
Ensuring parliamentarians are beyond moral reproach.
|
|
|
Ensuring parliamentarians are beyond moral reproach.
|
|
|
Protecting the principle of ministerial responsibility.
|
|
|
|
Source: Adapted from Odgers' Australian Senate Practice (14ed) p.166; Professor George Williams, Dr Sangeetha Pillai and Mr Harry Hobbs, Submission 36, p.1.
Additional disqualifications in section 45
3.11
Section 45(i) of the Constitution provides that if a Senator or Member is ‘subject to any of the disabilities’ in s. 44, their place ‘shall thereupon become vacant’. Section 45 specifies two additional grounds for a vacancy to occur:
s. 45 paragraph (ii): taking the benefit of bankruptcy laws.
s. 45 paragraph (iii): taking a fee or honorarium for services rendered to the Commonwealth.
3.12
Unlike s. 44, the operation of s. 45 only affects elected Senators and Members, not candidates.
Additional disqualifications already in the Electoral Act
3.13
The Electoral Act contains three additional restrictions that disqualify a person from sitting in the federal Parliament:
Being a member of a State Parliament or a Territory Legislative Assembly.
Being convicted of certain offences relating to bribery and undue influence (for two years following the conviction).
Having an ‘unsound mind’.
What problems does section 44 cause?
3.14
The wording of s. 44 and its interpretation by the High Court create a number of ongoing challenges for Australian democracy. Evidence to the Committee about the implications of s. 44 fell into three main areas of concern:
Discouraging political participation where candidates would have difficulty establishing compliance with s. 44.
Discouraging political participation by requiring candidates to relinquish government employment.
Instability and uncertainty in declared election results, with potential impact on declared seats.
Difficulty establishing compliance
3.15
During the inquiry, the Committee heard evidence that candidates could be deterred from contesting elections because compliance with s. 44 is too onerous and expensive and, for many Australians, ultimately unachievable.
3.16
A joint submission from Professor Rosalind Dixon, Associate Professor Appleby and Mr Lachlan Peake stated:
Despite some important clarification provided by the Court, we believe that many aspects of the operation of s 44 remain uncertain, potentially over-inclusive, and discriminatory in their operation in such a way that points to the benefits of reform in this area. The provision is… insufficiently tailored to, and therefore not sufficiently effective in, meeting its objective of promoting values of loyalty and integrity among members of Parliament.
3.17
Professor Alex Reilly said that if s. 44 remains in its current form, this would be a ‘strong disincentive’ to stand as a candidate, with a significant proportion of the population having to divest themselves of a foreign citizenship.
3.18
Mr Nicholas Hudson submitted:
A law designed to make sure that all Parliamentarians are loyal Australians is not only ineffective; it causes many totally loyal Australians to be excluded.
3.19
In their joint submission, Professor George Williams, Dr Sangeetha Pillai and Mr Harry Hobbs noted that comprehensively assessing a candidate’s potential disqualification under s. 44 could be ‘difficult, often expensive, and sometimes impossible’. The submission further described s. 44 as a barrier to political participation, particularly for independent candidates and minor parties.
3.20
Professor Helen Irving said that although some people believe parliamentarians ‘got what they deserved’, she described the High Court’s interpretation of s. 44 as having negative consequences for Australian democracy:
… unfair to individuals who genuinely do not know about their citizenship status, as well as cumbersome and expensive in necessitating by-elections, and for some people it is also inconsistent with Australia's multicultural character and values.
3.21
Today, in all other aspects of Australian life, multiple citizenship is allowed, if not celebrated. In 2002, the law changed to allow Australians to actively acquire foreign citizenship without losing their Australian citizenship. Dr Anthony Moran’s submission noted that the number of dual citizens was estimated to be 4.4 million. Dr Moran commented that this ‘just reflects the reality of a much more globally open world’.
3.22
Emeritus Professor Andrew Jakubowicz said that some people perceive a ‘fundamental irrationality and discrimination’ in the Australian Constitution which has ‘significant consequences for how they feel about being Australian.’ Hamilton Stone consulting submitted that ‘a migrant nation should not have a xenophobic constitution’.
3.23
Professor Kim Rubenstein said critics would argue that a dual citizen’s commitment to Australia could be doubted. She commented that ‘renouncing another citizenship doesn't necessarily mean that there is any change in a person's emotional connection and attachment to that other country.’ She added that there are inconsistencies; for example, a non-citizen who has resided in Australia for six months could be conscripted for national service but could not be elected to the federal Parliament.
3.24
There is no requirement for single citizenship in other aspects of public life. For example, High Court judges and members of the Australian Defence Force can hold dual citizenship. It is only members of the Federal Parliament that face restrictions. As noted below, most State and Territory Parliaments do not have a disqualification for dual citizenship.
Government employment
3.25
Some witnesses and submissions were concerned that public servants are required to quit their job and risk their personal financial position to stand as a candidate. This requirement extends to serving members of the Australian Defence Force. Mr Neil Cotter submitted:
There is no good reason to exclude public teachers, nurses, social workers, police and public servants, or potentially university lecturers or so many others… If anything these are more likely to be the kind of people we would want in parliament beyond the current disproportionate representation of lawyers, union officials, electorate officers, graziers, business executives and lobbyists.
3.26
Professor Anne Twomey gave an example of a situation that would not currently be allowed under the High Court’s interpretation of s. 44; saying:
If you were on leave without pay during that period and you then resigned the office after polling day but before the return of the writs, that seems to me perfectly reasonable.
3.27
Professor Graeme Orr said the states have restrictions in place for a handful of sensitive offices where you cannot nominate, such as a judge or being an ombudsman. He said for other public servants, there is ‘an automatic termination provision’ that applies at a time after ‘someone knows they're likely to be elected, and so they don't have to forfeit their family's security.’
3.28
As noted in Chapter 1, Defence Force personnel and those employed under the Commonwealth Public Service Act also have a right to re-employment in the event of unsuccessful candidacy. It has not been tested in the High Court whether the implied continuation of employment in these legislative provisions would be in breach of s. 44(iv).
Instability and uncertainty
3.29
Through the course of the inquiry it became evident that there is also a significant, but previously unexamined, aspect to s. 44 and its interpretation by the High Court. This may lead to an avenue to manipulate an election. Any otherwise eligible Senators and Members who are elected on preference flows could have their position challenged, if they relied upon the preferences of an ineligible candidate. This has the serious potential to affect the overall result after the election has concluded, at any point during the term of Parliament:
When unsuccessful Candidate C is challenged or found to be disqualified, the eligible and successfully elected Candidate A, who relied on Candidate C’s preference votes, could be in an uncertain position.
If votes for Candidate C are excluded from the count and preference votes re-distributed, Candidate A may not now have the most votes; the revised result could show that Candidate B or D should have been duly elected.
3.30
Professor George Williams, Dr Sangeetha Pillai and Mr Harry Hobbs stated in their joint submission:
While… some prospective candidates will be deterred from seeking nomination, the opposite is also true. The lack of understanding around what s 44 requires creates a risk that candidates who fall foul of the disqualification criteria but who do not realise this will stand for election, and in some cases will be elected.
3.31
Associate Professor Luke Beck submitted that there is a ‘potential to unseat parliamentarians who are not themselves disqualified.’ He explained:
The winning politician may in fact be perfectly qualified, but the people from whom they get their preference might be disqualified—the No. 2 or No. 3 candidate on the ballot paper.
3.32
He said that with the exception of candidates who won on first preferences or achieved their own quota, this could lead to a succession of challenges:
Because if you challenge person A and then you do the redistribution of the preference flows and get somebody else in but then you go back and challenge person B, you get a different outcome again. You could keep going on and on.
3.33
Prof. Graeme Orr has argued that the effect of the preferences of an unqualified, but unelected, candidate has not been adequately tested:
In re Wood, the Court reasoned that since the second and later preferences of each elector who did not spoil her ballot were known, there was no injustice in ignoring the unqualified candidature. In doing so it rejected an earlier, lower court finding from the Northern Territory that an unqualified candidate could upset an election under full preferential voting.
3.34
The judgment in Re Wood states ‘it is unreal to suggest that the presence of Senator Wood’s name on the ballot paper has falsified the declared choice of the people of the State for any of the first eleven candidates.’ (For more information on this case see Chapter 2).
3.35
The complications of unqualified candidates on the ballot paper were considered in the Tasmanian Senate recount. Dr Kevin Bonham notes:
…the argument could be run that [Senator] McKim's election by a very narrow margin was a product of the presence in the count of a candidate who was ineligible to stand and that McCulloch [an unsuccessful candidate] had been unfairly denied victory by the presence of this ineligible candidate.
3.36
While noting the High Court’s findings in re. Wood, Dr Bonham further states:
The differences in this case are firstly that it is very real to suggest the presence of Senator Parry's name on the ballot paper has at least raised a question over the declared choice, and secondly that this is a less common case in which the unqualified status of a candidate can be shown to lead to a different outcome based on the results as cast. However, since we already know that seven people who were elected at the 2016 election were ineligible to stand, it stands to reason that there would be many unelected candidates who are also ineligible.
3.37
Professor Blackshield said that in general, ‘there are many complications in this that have not been fully explored.’ Professor Dixon said that ‘if it were a matter of who was able to form government it would be extremely destabilising.’
Counting preference votes for House of Representatives elections
A House of Representatives candidate is elected if they gain more than 50 per cent of the formal vote.
First, all of the number '1' votes are counted for each candidate. If a candidate gets more than half the total first preference votes, that candidate will be elected.
If no candidate has more than half of the votes, the candidate with the fewest votes is excluded. This candidate's votes are transferred to the other candidates according to the second preferences of voters on the ballot papers for the excluded candidate. If still no candidate has more than half the votes, the candidate who now has the fewest votes is excluded and the votes are transferred according to the next preference shown. This process continues until one candidate has more than half the total number of formal votes and is elected.
A distribution of preferences takes place in every division, even where a candidate already has an absolute majority of first preference votes.
Issues specific to section 44(i)
3.38
The terms of reference require the Committee to look more carefully at subsection 44(i)–the disqualification for foreign citizenship. Although all the problems above also apply to s. 44(i), there are an additional set of considerations created by the historical context of the Constitution.
3.39
As discussed above, s. 44(i) is intended to prevent conflict of interest created by allegiance to a foreign power. The Committee heard evidence that while the principles remain relevant, the language used in s. 44 reflected the state of the world in the 1890s, and no longer conforms to societal norms or voter expectations. It also does not address the existence of Australian citizenship.
3.40
The Constitution was framed in the context of the British Empire, when dual citizenship was uncommon. Dr Sangeetha Pillai said:
…most migration to Australia came from within the British Empire, and British subject status, which captured everybody who was a citizen of any country in the empire, denoted the fullest form of formal membership in Australia, and dual citizenship was also far less common than it is today.
3.41
Dr Pillai added that the British Empire is now dissolved and the situation has changed, leading to unintended outcomes:
In 1901 we were very happy with British subject status. … And even in 1949, when we made our own status of citizenship, it was put on equal footing with British subject status. … Then, when we got to 1986, when we had the Australia Act and legal independence, we started to have cases…where it was established that the UK was a foreign power.
3.42
Citizenship is no longer the most important single marker of allegiance. Professor Rubenstein said this created a ‘disjuncture’ between legislation–which permits dual citizenship–and s. 44 of the Constitution–which does not permit dual citizens to serve in Parliament.
3.43
Hamilton Stone consulting submitted that dual citizenship should not be discouraged:
A migrant nation should not have a xenophobic constitution. The pledge required as part of becoming a citizen is enough… Beyond this, it should be up to voters to decide whether a person is fit to represent them.
3.44
It is clear that the link between citizenship and allegiance was stronger and much less complicated in 1901 than it is in 2018. The Committee also considers that these questions will only continue to become more complex into the future. The Committee agrees with the submitters who suggested ‘future-proofing’ disqualifications to allow for flexibility and change.
The timing of disqualification
3.45
The Committee heard further evidence about the problems caused by candidates having to ensure that they are not disqualified at the time when they nominate for election. This applies to all candidates whether or not they are ultimately elected.
3.46
The requirement stems from the High Court’s interpretation of the words ‘being chosen’. Section 44 disqualifies a person from ‘being chosen or of sitting’ in Parliament. The phrase ‘being chosen’ is taken to include the election period when candidates nominate, campaign and electors cast their votes.
3.47
For unsuccessful Senate candidates, ‘being chosen’ extends for potentially six years after the election, as casual vacancies in the Senate are filled through recounts. In the time intervening between the election and a recount, candidates remain in a state of ‘being chosen’ and could be disqualified years after a general election has concluded.
3.48
A number of witnesses said the broad legal meaning of ‘being chosen’ is excessive and causes complications for Parliament and candidates.
3.49
Professor Kim Rubenstein said that the timing disqualification from the point of nomination may deter people from standing as candidates. Professor Anne Twomey said:
There have been all sorts of timing problems… the word ‘chosen’ in s. 44 refers to a period of time that starts at nomination and concludes when the election has finally, validly, chosen a person.
3.50
Professor Graeme Orr said this means a candidate for a Senate election ‘remains a candidate for in excess of six years’ and sends the High Court ‘back in a time machine to undo elections up to five or six years after the event.’ Professor Williams said:
The High Court has taken a really inconvenient approach in extending it here, not just back to the point of nomination but also now, for unsuccessful senators, to the point after the declaration of the poll. … That’s a clear unanimous decision of the court. That's not going to shift. The only way of altering that is by a referendum.
3.51
Professor Twomey said that it would be ‘better to change it so that there is a specific date upon which a person is disqualified from being chosen.’ She suggested this could be at the return of the writs:
That would allow anyone who was likely to have been elected to have a period of time to resolve any other kind of disqualification issues before the writs are returned, and it would give more certainty.
3.52
Associate Professor Luke Beck said:
…there are eminently good reasons to make the disqualification attached to being elected and sitting in parliament, not the process of nominating and being chosen. The current situation is just an effect of the language of the current section.
3.53
As an example, Associate Professor Beck said this would allow public servants to take leave while campaigning and resign only if successfully elected.
Election dates and the parliamentary term
8 May 2016: A general election is announced. Due to disagreement over legislation, in this instance both Houses of Parliament are dissolved and there was a ‘double dissolution’ election.
9 June 2016: Candidate nominations closed. Candidates are now ‘being chosen’ and are liable to be disqualified from this point onwards.
14 June 2016: Early voting commences.
2 July 2016: Election day.
26 July to 5 August 2016: declaration of the polls for the Senate.
20 July to 5 August 2016: declaration of the polls for the House of Representatives.
8 August 2016: The return of the writs to formally confirm elected candidates. Within 40 days of the return of the writs, the law allows for any person to initiate a legal challenge to the election of a Senator or Member (notionally 17 September 2016).
30 August 2016: The 45th Parliament is opened and Senators and Members are sworn to office and are now ‘sitting’. The House of Representatives continues for three years from the date of its first meeting and then expires, unless an election is called at an earlier date. The terms of Senators are deemed to commence on the first day of July (1 July 2016) that precedes a double dissolution election.
30 June 2019: The terms of Senators elected for three years expire.
30 June 2022: The terms of Senators elected for six years expire.
The process of disqualification
3.54
There are three ways to challenge the eligibility of a Senator or Member. Any method can be used to mount a challenge for one of the disqualifications in s. 44, although there are limitations on who can challenge and when.
3.55
The position is less clear in the case of a challenge to the eligibility of an unsuccessful candidate. It is likely that this would be limited to the first mechanism–disputing the election by lodging a petition to the Court of Disputed Returns within 40 days.
3.56
The three pathways are:
1
Any person can lodge a petition addressed to the Court of Disputed Returns within 40 days of writs being returned for an election, asking the Court to examine the case.
2
The House or Senate may refer the question to the Court of Disputed Returns using processes in s. 376 of the Electoral Act. The Senate or House can pass a resolution referring a Senator or Member to Court of Disputed Returns. Section 377 of the Electoral Act explains that the Senate President or the Speaker of the House should write to the Court stating the terms of the referral and may provide additional information.
3
Senate rules allow for a petition to be lodged by any person with the Clerk, within 40 days of the writs being returned, for the Senate’s consideration.
Court of Disputed Returns
3.57
Regardless of which pathway is used, the actual determination of qualification is made by the Court of Disputed Returns. The Court of the Disputed Returns is the High Court of Australia, although the High Court does have the power to refer petitions under the Electoral Act to the Federal Court for trial.
3.58
The Court of Disputed Returns is required to act in a particular way in making its decisions. For example, the Court must make its decision on a petition as quickly as is reasonable, and has to be guided by the substantial merits of each case without regard to legal forms.
3.59
Although the powers of the Court and the potential outcomes are the same in each case, it is worth noting that under a petition made within 40 days of the election, the Court is determining a dispute about the validity of an election or return. Under a referral from a House of Parliament, the Court is determining a question on the qualification of a particular Senator or Member.
Common informers
3.60
A case under the Common Informers (Parliamentary Disqualifications) Act 1975 (the Common Informers Act) has recently been used to challenge the qualifications of a sitting Member. This Act allows anyone to bring a common informer action against a sitting Member or Senator to recover money for each day that Member or Senator sat in Parliament while disqualified.
3.61
In the recent decision of Alley v Gillespie, the High Court decided that the Common Informers Act does not give it the authority to determine whether a Member or Senator is disqualified. That question can only be decided by the Houses of Parliament themselves under s. 47 of the Constitution, by the High Court after a referral under s. 376 of the Electoral Act, or by a petition by any person within 40 days of the writs being returned. This decision has limited the scope of common informers actions.
How many Australians are potentially affected?
3.62
Statistical data indicates that over half of all Australians today would have barriers to nomination under s. 44. These citizens would not be able to nominate for federal Parliament until they have taken steps to address these barriers. In practice, some may never be able to overcome these barriers and nominate.
3.63
Australian Electoral Commission statistics show that 16,076,433 million Australians are currently enrolled to vote. This figure is the total pool of Australians potentially eligible to nominate for election. The following paragraphs break down how many, out of this pool of over sixteen million people potentially qualified to nominate, may be potentially disqualified under each subsection of s. 44.
3.64
Section 44 paragraph (i): foreign citizenship and allegiances: In Australia, around 10,779,230 million people (46 per cent of the population) were born overseas or have one or more parents who were born overseas. The percentage is around 52 per cent when confined to Australians who are eligible to vote. This figure does not include data on the birthplace of grandparents, great-grandparent or spouses which may also affect a person’s citizenship status.
3.65
Section 44 paragraph (ii): treason and punishable offences: Reliable statistics on the number of persons affected by this clause at any given time are unavailable. In addition, sentencing regimes for similar crimes vary among Australian jurisdictions. The Committee expects that very few people would be affected by a treason conviction.
3.66
Section 44 paragraph (iii): bankruptcy and insolvency: according to the Australian Financial and Security Authority, there were a total of 16,320 cases of bankruptcy and 30,161 cases of insolvency for the financial year 2016-17.
3.67
Section 44 paragraph (iv): holding an office of profit under the Crown: According to Australian Bureau of Statistics data, as at June 2017, there is an aggregate of 1,956,800 employees in the Commonwealth, state, and local public sectors–approximately 8 per cent of the Australian population. This figure comprises 239,800 employees in the Commonwealth; 1,527,600 employees at the state level; and 189,500 employees in the local government public sectors. These figures do not separately identify citizens, dual citizens and non-citizens.
3.68
Section 44 paragraph (v): having a pecuniary interest with the Commonwealth Public Service: No figures are available on the number of people who have direct or in-direct pecuniary interest in the Australian Public Service. According to Department of Finance figures, the Commonwealth entered into 64,092 procurement contracts amounting to a value of AU $47 billion in the 2016-17 financial year, of which 60 per cent went to small and medium-sized businesses. The range of these contracts is vast; from commercial and military vehicle components, management and administrative services, to laboratory and testing equipment and drugs and pharmaceutical products.
3.69
In short, it is impossible to determine how many exactly how many Australians may be ineligible, or would have to take measures to become eligible. However it is likely to be greater than 50%, leaving only eight million Australians eligible to nominate for election without having to take additional measures, and losing something they may not be able to afford to lose. Many Australians may in ineligible on the basis of at least two sections.
Two scenarios
3.70
The issues discussed above have a practical impact on parliamentary eligibility.
3.71
The impact of s. 44(i) is demonstrated through the following scenario.
A representative group of Australian citizens from all walks of life is assembled to learn how to run as a candidate for Parliament. They are all qualified to nominate for Federal Parliament in accordance with s163 of the Electoral Act (through s34 of the Constitution).
They are all asked to stand up. As a group they are then asked a series of questions relating to s44 disqualifications. If they answer yes to any questions, they are instructed to sit down.
Anybody who sits down is ineligible to automatically stand as a candidate.
These nine questions are asked:
1
Were you or your spouse born overseas?
2
Do you have, or do you know if you are entitled to one or more additional citizenships - even though under Australian law you are entitled to multiple citizenships?
3
Was one or both of your parents or grandparents born overseas?
The latest census shows that close to 50% of the group will by now be sitting down.
4
Were you, a parent or grandparent adopted or a member of the ‘stolen’ or ‘forgotten generations’ and do not have a full family history?
5
Did you, your parents or grandparents emigrate from a war zone from a country whose borders have subsequently changed, citizenship is unclear and/or official records destroyed?
6
Do you work for federal, state, maybe local, governments or agencies, including nurses, firefighters or serving in the Australian Defence Force?
7
Have you been convicted or are subject to be convicted of any offence punishable by one year or longer imprisonment?
8
Are you an undischarged bankrupt or insolvent?
9
Do you have any direct or indirect pecuniary interest in any agreement with the Commonwealth? If you are a builder with a Commonwealth contract for example, you might want to sit down until you get some legal advice.
By now, over 60% of the group are likely to be seated, and all will be bemused by the meaning of question 9.
The 40% or so still standing will be advised they have no potential s. 44 disqualifications and can all go straight into the candidate nomination express lane. They have no barriers to nomination and nothing to lose or renounce to nominate. They have:
fully documented multi-generational Australian family lineage;
they work in the private sector; and
they are not otherwise disqualified.
The remaining group will need to take active measures to overcome all of these barriers before nominating. These measures may include:
If you work for any level of Australian government or agency, including the military, you will have to resign your job.
If you know you have dual or multiple citizenships, you will have to successfully renounce them all before you nominate. As the renunciation laws of the other 194 nations are all different, this could be very time consuming and expensive, and ultimately unsuccessful.
If you don't know your full family history - perhaps you or your parents were adopted, were members of the ‘stolen’ or ‘forgotten’ generations, or migrated from any number of war zones - you may find it impossible to ever nominate.
There are three possible outcomes for the 60% group.
Firstly, those who clear all disqualification barriers before the election can decide to nominate. If you can’t do that in time you will need to wait another three years before you can run, if you can afford to do so if you’ve had to give up your job.
Secondly, those unsuccessful in clearing all disqualification barriers will forever remain ineligible to nominate.
Thirdly, many of you may well decide not to go through the process of clearing disqualification barriers as it may be too hard, too expensive or too great a sacrifice for you and your family.
3.72
This scenario shows how s. 44 diminishes the pool of diverse candidates and is profoundly undemocratic.
The impact on future elections
3.73
The second major problem caused by s. 44 is the potential to disrupt the outcome of future elections due to candidates knowingly or unknowingly being ineligible.
3.74
As the events of 2017 have highlighted, following the disqualification of some Senators, unsuccessful candidates have been further found to be disqualified. In one case, this was a result of a job the candidate took after the election, despite being eligible when nominating for election. As the ‘successful’ candidate was then disqualified, the High Court found that the election continued until a qualified candidate was found.
3.75
The impact of this is demonstrated through the following scenario.
A number of candidates nominate for election to the Senate, either aware or unaware that they are disqualified under s. 44.
The election result is close; with the Government holding a one-seat majority in the Senate, or the Opposition and crossbench hold a one-seat majority.
A qualified and elected candidate is challenged, on the grounds that she was elected on the basis of preferences from unsuccessful disqualified candidates. Because the disqualification applies at the time of nomination, votes cast and preferences gained from that candidate may not be able to be applied in the way the voter intended.
This scenario has not been addressed by the High Court and the outcome is unknown. It could take months to be determined. In the event of a close election it could well impact on the ability to form government, trigger a House of Representatives election and delay the confirmation of State and Territory Senate teams.
Other parliaments in Australia and overseas
3.76
The qualifications and disqualifications in Australian and selected overseas jurisdictions are summarised below.
Australian States and Territories
3.77
Generally, candidates must be enrolled to vote to be eligible to stand as a candidate. Being enrolled to vote is also an indirect way of imposing a minimum age requirement. Candidate qualifications are outlined below.
Table 3.2: State and Territory candidate qualifications
|
|
Enrolled or entitled to vote
|
Resided for time prior to nomination
|
Australian citizenship
|
18 years or older
|
|
New South Wales
|
Yes
|
No
|
No
|
No
|
|
Victoria
|
Yes
|
No
|
No
|
No
|
|
Queensland
|
Yes
|
No
|
Yes
|
No
|
|
Western Australia
|
Yes
|
Yes
|
Yes
|
Yes
|
|
South Australia
|
No
|
Yes
|
Yes
|
Yes
|
|
Tasmania
|
Yes
|
Yes
|
No
|
No
|
|
Australian Capital Territory
|
Yes
|
Yes
|
Yes
|
Yes
|
|
Northern Territory
|
No
|
Yes
|
Yes
|
Yes
|
3.78
The factors could potentially lead to disqualification from the State parliaments or Territory legislative assemblies are outlined below.
3.79
In most cases, disqualification for holding an office of profit is supplemented with exceptions (such as taking unpaid leave) or a procedure for deeming a public servant to have resigned. In some jurisdictions, the judiciary are expressly disqualified.
Table 3.3: State and Territory potential disqualifications
|
|
Bankruptcy
|
Serious criminality
|
Offices of profit
|
Treason
|
Pecuniary interests with the public service
|
|
New South Wales
|
Yes
|
Yes
|
Yes
|
No
|
Yes
|
|
Victoria
|
Yes
|
Yes
|
Yes
|
No
|
No
|
|
Queensland
|
Yes
|
Yes
|
Yes
|
Yes
|
Yes
|
|
Western Australia
|
Yes
|
Yes
|
Yes
|
Yes
|
No
|
|
South Australia
|
Yes
|
Yes
|
Yes
|
Yes
|
No
|
|
Tasmania
|
No
|
No
|
Yes
|
No
|
No
|
|
Australian Capital Territory
|
No
|
Yes
|
Yes
|
Yes
|
No
|
|
Northern Territory
|
Yes
|
No
|
Yes
|
No
|
Yes
|
3.80
Additional disqualifications are outlined below. A failure to attend the parliamentary sittings, for example, is an indirect way of disqualifying a person who is in prison.
Table 3.4: Additional State and Territory potential disqualifications
|
|
Acquiring foreign citizenship
|
Failing to attend Parliament
|
Member of the other House
|
Member of another Parliament
|
Having an ‘unsound mind’
|
|
New South Wales
|
Yes
|
Yes
|
Yes
|
No
|
No
|
|
Victoria
|
No
|
No
|
No
|
Yes
|
No
|
|
Queensland
|
No
|
Yes
|
No
|
No
|
No
|
|
Western Australia
|
No
|
No
|
Yes
|
No
|
Yes
|
|
South Australia
|
Yes
|
Yes
|
Yes
|
Yes
|
Yes
|
|
Tasmania
|
No
|
No
|
Yes
|
No
|
Yes
|
|
Australian Capital Territory
|
No
|
No
|
No
|
Yes
|
Yes
|
|
Northern Territory
|
No
|
Yes
|
No
|
No
|
No
|
New Zealand
3.81
The following factors may lead to disqualification from Parliament or affect eligibility to stand as a candidate:
A person must be enrolled to vote and a New Zealand citizen. A citizen who has resided outside New Zealand for the last three years may not be eligible.
A person born overseas is required to provide evidence of their New Zealand citizenship.
Public servants are required to take a leave of absence. If elected, a public servant is deemed to have resigned.
Prisoners serving sentences are disqualified.
3.82
There is no rule against bankrupts standing as candidates or serving in the Parliament.
Canada
3.83
The following factors may lead to disqualification from Parliament or affect eligibility to stand as a candidate:
A person must be at least 18 years old, enrolled to vote and a Canadian citizen.
Members of Provincial legislative assemblies are ineligible.
A person imprisoned in a correctional institution is ineligible.
Prescribed office-holders are ineligible; for example, judges, a Provincial sheriff and election officers.
United Kingdom
3.84
The following factors may lead to disqualification from Parliament or affect eligibility to stand as a candidate:
A person must be at least 18 years old and a British citizen, a citizen of the Republic of Ireland or an eligible Commonwealth citizen.
Prisoners who are being detained for more than one year are ineligible.
Members of the European Parliament are ineligible.
Public servants are ineligible; this includes police, soldiers, judges and government-nominated directors of commercial companies.
Bankruptcy may lead to disqualification, depending on the status of legal proceedings.
A person convicted or found guilty of corrupt or illegal electoral practices is ineligible.
3.85
There is no requirement to be enrolled to vote in the United Kingdom. The UK does not have a written constitution and the Parliament can determine eligibility requirements in legislation.
United States
3.86
The US Constitution states that each House of Congress ‘shall be the judge of the elections, returns and qualifications of its own members’. Minimum requirements are embedded in the US Constitution:
For the Senate: a person must be at least 30 years old, have been a US citizen for nine years and an inhabitant of the State for which they will be chosen.
For the House: a person must be at least 25 years old, have been a US citizen for seven years and an inhabitant of the State for which they will be chosen.
Eligibility for a candidate to be listed on the ballot paper is determined at State level and may vary.
An individual can seek the nomination of a state-recognised political party.
An individual can run as an independent. Independent candidates often must petition in order to have their names printed on the general election ballot.
An individual can run as a write-in candidate.
3.87
The states may set additional requirements for election to Congress, but the Constitution gives each house the power to determine the qualifications of its members.
Comparison
3.88
Examining the qualifications of other Parliaments shows that the Australian Constitution, through the operation of ss. 44 and 45, imposes unusually stringent disqualification requirements. Within Australia, only two of the State and Territory Parliaments consider foreign citizenship a barrier to entering Parliament.
3.89
There is also significant variation in how qualifications and disqualifications are created. The two foreign Parliaments with the greatest similarity to Australia’s–New Zealand and the United Kingdom–are able to set their own qualifications and disqualifications to reflect their country’s contemporary community standards.