Overview
2.1
In considering s. 44, it is important to understand why it was included in the Constitution, and the intent of the drafters. This Chapter:
gives a brief overview of the relevant constitutional debates and historical context;
discusses the clause ‘until the Parliament otherwise provides’ and its omission from s. 44;
provides an overview of reviews of s. 44; and
outlines the High Court cases that have resulted in the current interpretation of s. 44.
2.2
The historical debates are set out in some detail, as they show that the original intent was for s. 44(i) to only apply if an individual took active steps to obtain foreign citizenship. There is also no evidence it was meant to apply to candidates as well as elected members and Senators. Instead, last minute amendments resulted in the current clause, which also includes citizenship gained passively. As discussed in Chapter 3, this means that foreign governments can determine disqualification for the Australian Parliament through their citizenship laws.
2.3
Further reading relevant to this Chapter is at Appendices A and F.
The original Constitutional debates
2.4
The Constitution was drafted and debated during a series of constitutional conventions in the 1890s and finalised in Melbourne in early 1898. Establishing both the qualifications and disqualifications of members of Parliament was a contested proposition. In the end, s. 44 was agreed in the final session of the convention.
2.5
Delegates considered an amendment to include the words ‘until Parliament otherwise provides’ in s. 44 for disqualifications, as they had for qualifications in s. 34. This amendment would have allowed Parliament to determine the grounds for both qualifications and disqualifications at a later time; however, for reasons not clear to the Committee today, it was defeated 26 votes to 8.
2.6
The convention debates show that delegates were confident that s. 44 would never need changing as it provided a basic safeguard to parliamentary integrity and national sovereignty. Their assumption, at a time when Australian citizenship did not exist, appears to be that societal expectation of its qualifications would not change. In evidence to the Committee, Dr Hal Colebatch commented that the debate had a ‘very primitive anti-foreigner sentiment running through it’.
2.7
Mr Patrick Glynn–who moved the amendment to s. 44 to include ‘until Parliament otherwise decides’– suggested the federal Parliament would always endorse the same general principles and saw no harm in allowing flexibility. He argued that s. 44 had a temporary purpose, ‘to cover the gap between the adoption of the constitution and the passing of special legislation by the federal parliament.’
2.8
Mr Glynn also added that the Australian colonies had different legal definitions of who is a bankrupt or a criminal (relevant to ss. 44(ii) and (iii)): ‘I say that this is a matter for the federal parliament, and that it ought not to be fixed perpetually in the constitution.’ He said the meaning of words could change and that this would ‘put it in the power of the state parliaments to either extend or diminish the qualification’.
The Hon Sir Edmund Barton (who later became Australia’s first prime minister) did not agree and argued:
These limitations having been put in all constitutions of the Australian colonies, and having worked well, and prevented the entry of undesirable persons into parliament, they may well be continued in the constitution we are now framing.
2.9
Sir Edmund Barton continued:
This is not merely a case of preserving the freedom of the electors, but of preventing them from being imposed upon by persons who otherwise might creep into parliament… who were under other conditions of which they should rid themselves before they offered themselves for election to any legislative assembly.
2.10
Mr Glynn and, in similar terms, the Hon Sir Adye Douglas, countered that the federal Parliament should be trusted to alter or repeal the section as required. Mr Glynn noted that the federal constitution would be more difficult to amend than the colonial constitutions:
In most of them an amendment can be made, if it is carried by a two-thirds majority of the houses, and a resolution is passed asking for the royal assent to it. … I think, the fact that we have similar provisions in our constitutions should not determine our decision in regard to this matter.
2.11
Foreign infiltration was also discussed. The Hon Sir Simon Fraser said:
A foreigner might get into our parliament, and sell our defence secrets to a foreign power. We must look forward to the time when we will be a powerful nation… Would a foreign country allow a Britisher to go into its parliament? There would not be the slightest chance, and their laws will scarcely allow a foreigner to travel through their country.
2.12
This perspective reflected British law at the time. The 1893 edition of Erskine May’s manual on parliamentary practice in the House of Commons stated:
An alien is disqualified to be a member of either House of Parliament. The Act 12 & 13 Will. III c. 2, declared that ‘no persons born out of the kingdoms of England, Scotland, or Ireland, or the dominions thereunto belonging (although he be naturalised or made a denizen, except such as are born of English parents) shall be capable to be of the privy council, or a member of either House of Parliament.’
2.13
It is worth noting that the concept of ‘foreign country’ at the time of the original constitutional debates referred to those countries not within the British Empire. Today we hold a much narrower concept of ‘foreign country’ meaning any country that is not Australia. It is unlikely that any person would now follow the example of Sir George Reid; who, as a citizen of the British Empire, was the fourth Prime Minister of Australia (1901-04) before being elected to the United Kingdom House of Commons in 1916.
2.14
While Mr Glynn’s amendment to include ‘until Parliament otherwise decides’ failed to pass, Sir Edmund Barton successfully initiated a subsequent amendment to s. 44(i), among a suite of 400 other changes to the draft Constitution dealt with on the second-last day of the final session in Melbourne in 1898.
2.15
This amendment included changing 44(i) from the previous version, where only active steps in taking foreign citizenship would trigger the disqualification provision. In the final version, any citizenship or foreign allegiance whether sought or unsought would be caught by s. 44(i). This meant that no active steps needed to be taken.
2.16
In a joint submission to this inquiry, Professor George Williams,
Dr Sangeetha Pillai and Mr Harry Hobbs (private capacities) commented that the late change made s. 44(i) distinct from other British Commonwealth constitutions, which ‘tended to disqualify a person from Parliament only where they had taken positive steps to acquire a foreign citizenship or allegiance.’ Dr Colebatch said there was ‘no explanation’ for changing the text and ‘the whole clause was just waived through.’ He submitted:
That there was a new text was not acknowledged, and it was not debated, but was taken on trust, the delegates relying on Barton’s assurance that it was simply a clarification of their intentions.
2.17
In an attachment to his submission Dr Colebatch further observes:
After four days of drafting, Barton presented the convention, on its second-last day, with 400 amendments. He proposed a three-hour break for the delegates to study them, after which they could be put to the vote en bloc.
Barton assured the convention that there was only one amendment of substance–to s. 44(ii). What he did not say was that s. 44(i) had been completely rewritten, changing it from an active voice (“done any act whereby”) to a passive voice (“is a subject or citizen … or is entitled to”).
No attention was drawn to this change, there was no explanation of it, and there was no time for debate on any clause unless someone objected to it. The constitutional text that proved so significant more than a century later was a last-minute change, drafted in private and accepted out of weariness.
Twentieth century proposed reforms
2.18
The operation of s. 44 did not garner much attention in Australian political and constitutional discourse until after the creation of Australian citizenship in 1949. Until that point, all Australians remained citizens of the British Empire. Since 1949, s. 44 has been the subject of several inquiries and reviews.
2.19
These reviews all identified problems with the operation of s. 44 and accurately predicted an increased number of future disqualifications. Despite this, no action was taken on the three parliamentary committee inquiries recommending reform.
Committee on Constitutional and Legal Affairs–1981
2.20
In 1981 the Senate Standing Committee on Constitutional and Legal Affairs made recommendations that included the following:
s. 44(i) and (iii) be deleted;
s. 44(ii) be amended to cover treason only;
s. 44(iv) be amended to clarify the types of employment covered by the clause and include the proviso that those covered by the clause ‘shall be deemed to have ceased such employment or resigned such membership at the date he or she becomes entitled to an allowance under s. 48 of this Constitution’;
s. 44(v) be deleted and replaced with a clause allowing Parliament to legislate on members’ interests and whether these are improper; and
Amending ss. 34 and 45 to ensure consistency with changes proposed to s. 44.
2.21
The report observed that the concept of dual nationality would affect large numbers of Australian citizens. The report stated:
…Australian citizens with unsought dual nationality should be free to participate in the highest levels of political life in the Australian democratic system. To deny them this right of citizenship on the basis of a determination by a foreign system of law… would be most invidious.
2.22
The 1981 report also found that the meaning of an ‘office of profit under the Crown’ is too vague and the text should be discarded and replaced with a ‘clear and detailed statutory statement… so that public office-holders… will be able readily to ascertain their position.’
Sessions of the Constitutional Convention–1976, 1983 and 1985
2.23
Reform of parliamentary qualifications and disqualifications was also discussed during the 1976, 1983 and 1985 sessions of the Constitutional Convention. The conventions debated the issues without coming to a firm conclusion (see Appendix G). In 1988 the Final Report of the Constitutional Commission effectively recommended that s. 44 be deleted, by recommending that:
s. 44(i) and (iii) and s. 45(ii) be deleted;
s. 44(ii) be amended to cover treason only;
the remainder of s. 44 be replaced by other provisions.
House of Representatives Legal and Constitutional Affairs Committee–1997
2.24
In 1997, the House of Representatives Legal and Constitutional Affairs Committee also recommended that some or all of s. 44 be deleted. Its recommendations included the following:
a new provision be inserted requiring candidates and members to be Australian citizens;
Parliament legislate to determine disqualification in relation to foreign allegiance;
s. 44(iv) be deleted and replaced with other provisions requiring the Parliament to legislate providing that the occupants of certain positions are deemed to resign from those positions before they begin to receive a parliamentary allowance; and
A new provision be inserted requiring judicial officer-holders to resign before nomination at an election.
2.25
In its response to the report in December 1997, the Government supported the Committee’s recommendations.
2.26
The report noted that ‘many Australian citizens are unaware that they are dual citizens’ and that s. 44(i) is a ‘significant problem’. The report stated:
A large number of Australians… are quite probably unaware that they are disqualified from… parliament by the provision. Second, the steps that are necessary for the purpose of divesting foreign citizenship are unclear in many cases and whether or not any steps taken are effective can only be finally determined by the High Court.
2.27
Professor James Jupp gave evidence at the 1997 inquiry and told this Committee:
What has happened over the years… is that there are now increasing numbers of people who are becoming ineligible to sit in parliament unless they do something about their qualifications.
2.28
In relation to holding an office of profit under the Crown, the report found this to be ‘unfair and discriminatory’ and the language of the rule to be ‘quite uncertain’.
Electoral Matters Committee–2000
2.29
In June 2000, the Electoral Matters Committee recommended a referendum to extinguish foreign allegiances at the point of nomination, whereby:
…the act of nomination by a candidate for the House of Representatives or Senate be recognised as immediately extinguishing any allegiance to a foreign country provided the candidate is also an Australian citizen.
2.30
The Government agreed with this recommendation, subject to a ‘clear indication of widespread support for the measure being proposed.’ It was not progressed.
Table 2.1: Past proposed reforms to s. 44
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s. 44(i) foreign citizenship
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Delete
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Delete
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Amend so Australian citizenship is minimum requirement
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|
s. 44(ii) treason and offences
|
Amend and limit to treason only
|
Amend to allow Parliament to set rules
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(Outside scope of inquiry)
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|
s. 44(iii)
Bankruptcy
|
Delete
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Delete
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(Outside scope of inquiry)
|
|
s. 44(iv) office of profit
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Amend so employment deemed to cease
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Amend so only specified offices are disqualified
|
Amend so only specified offices are disqualified
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|
s. 44(v) pecuniary interests
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Amend to allow Parliament to set rules
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Amend to allow Parliament to set rules
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(Outside scope of inquiry)
|
|
Other
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Amend ss. 34, 43 and 45
|
Amend ss. 34 and 45
Disqualify anyone with an ‘unsound mind’
|
|
High Court consideration of section 44
2.31
The Constitution gives the role of interpreting s. 44 to the High Court. The High Court has jurisdiction over ‘any matter… arising under this Constitution, or involving its interpretation’. This means that the High Court hears and determines questions regarding the potential disqualification of Senators and Members. (Further information can be found at Appendix E.)
2.32
In the twentieth century there were few High Court cases about s. 44. This meant that the potential problems of s. 44, and how far it extended, were largely untested.
2.33
The recent cases have made the extent and implications of s. 44 much clearer, and have demonstrated how prescient previous reviews were about the implications of s. 44 to our democracy and impacts on our electoral system. The most significant limitation to emerge is who is eligible to nominate and serve in federal Parliament. For example:
a person who has their criminal conviction quashed can be ineligible;
a person who unknowingly holds dual citizenship cannot nominate or serve in Parliament;
a person who holds Commonwealth employment after nomination, and even after the election itself, may not be eligible for a vacancy that arises in the parliamentary term.
2.34
The most significant cases are summarised below.
Crittenden v Anderson (1950)
2.35
The 1949 election of Mr Gordon Anderson in the electorate of Kingsford-Smith was challenged on the grounds that Mr Anderson was a member of the Roman Catholic Church and–by extension–therefore obedient or allegiant to the Papal State. Justice Fullagar did not allow the challenge, finding that it was s. 116 and not s. 44(i) of our Constitution which is ‘relevant when the right of a member of any religious body to sit in Parliament is challenged on the ground of his religion’.
Re Webster (1975)
2.36
At the time of his election to the Senate in 1974, James Webster was a manager and shareholder of a company supplying timber to the Department of Housing and Construction. The Senate referred his case to the Court of Disputed Returns to determine whether a disqualifying pecuniary interest existed. Chief Justice Barwick held that Mr Webster was not ineligible because ‘an agreement must have currency for a substantial period of time’ and the pecuniary interest must be of a nature that ‘the person who is said to be disqualified could conceivably be influenced by the Crown in relation to Parliamentary affairs’.
2.37
In their joint submission to this inquiry Associate Professor Gabrielle Appleby, Professor Rosalind Dixon and Mr Lachlan Peake observed that Chief Justice Barwick had ‘confined the operation of the provision to formal agreements between the executive government and parliamentarians, on the basis that the provision was directed to secure the independence of Parliament from the Crown’.
Nile v Wood (1988-1989)
2.38
The 1987 election of Mr William Wood as a senator was challenged on multiple grounds: criminality, insolvency and protest actions against the vessels of a friendly nation that allegedly indicated an allegiance to a foreign power. Justices Brennan, Deane and Toohey dismissed the petition challenging Mr Wood on technical grounds, but made several observations relating to s. 44.
Section 44(i)–foreign citizenship and allegiances
2.39
The Court held that ‘…it would seem that s. 44(i) relates only to a person who has formally or informally acknowledged allegiance, obedience or adherence to a foreign power and who has not withdrawn or revoked that acknowledgement.’
Section 44(ii)–treason and punishable offences
2.40
The Court stated: ‘It is not conviction of an offence per se of which s. 44(ii) of the Constitution speaks. The disqualification operates on a person who has been convicted of an offence punishable by imprisonment for one year or more and is under sentence or subject to be sentenced for that offence.’
Section 44(iii)-bankruptcy and insolvency:
2.41
The Court held that ‘…insolvent is not adjectival and merely describing a person who cannot pay his debts as they fall due. It is…part of a composite reference to the status of a person who has been declared bankrupt or insolvent and who has not been discharged from that condition.’
Sykes v Cleary (1992)
2.42
In an April 1992 by-election, Mr Philip Cleary was elected to the House of Representatives. Mr Cleary’s election was challenged on the grounds that he held an ‘office of profit under the Crown’ as a school teacher permanently employed by the Education Department of Victoria.
2.43
The petition also alleged that two other unsuccessful candidates were dual citizens and therefore also disqualified.
Section 44(iv)–pecuniary interests
2.44
The Court held that the taking of leave without pay does ‘not alter the character of the office held’, an office of profit can include a State office and the disqualification ‘must be understood as embracing a least those persons who are permanently employed by government’.
2.45
Professor Cheryl Saunders commented:
You can quibble about whether schoolteachers have offices at all, but to the extent that they do, it's an office of profit under the state crown. Someone like that running for the Commonwealth parliament can't possibly endanger the integrity of the Commonwealth parliament because the Commonwealth executive is capturing his or her vote.’
Section 44(i)-foreign citizenship and allegiances
2.46
The Court held that an Australian citizen who holds citizenship of another country is not disqualified ‘if he has taken all steps that can reasonably be taken to renounce that foreign nationality or citizenship’. Furthermore, a ‘unilateral declaration’ renouncing foreign citizenship is insufficient to release a person from disqualification if ‘a further step can reasonably be taken which will be effective under the relevant foreign law to release him from the duty of allegiance or obedience’.
2.47
Submissions made reference to the implications of this case. For example, Associate Professor Gabrielle Appleby, Professor Rosalind Dixon and
Mr Lachlan Peake noted that the High Court had made no distinction ‘between higher-level office holders and lower-level government employees such as teachers or nurses in public hospitals.’ While supporting the intention of the clause to ensure an impartial bureaucracy, they submitted that the clause ‘is only of real consequence at senior levels of the public services.’ The submission also discussed the interpretation of s. 44(i):
Neither a mental ingredient, such as actual allegiance, acquiescence or knowledge, nor a positive act to obtain or retain the rights and privileges of a foreign citizen, were adopted as requirements for disqualification under
s. 44(i). This interpretation cuts a potentially wide swathe through parliamentary candidates.
2.48
Professor George Williams, Dr Sangeetha Pillai and Mr Harry Hobbs commented that satisfying ‘reasonable steps’ lacks clarity. In contrast,
Mr Michael C Douglas submitted that the reasonable steps exception is clear and understood.
Sue v Hill (1999)
2.49
Ms Heather Hill was elected as a senator in 1998. A challenge followed because Ms Hill was a dual citizen of Australia and the United Kingdom at the time of her nomination. Chief Justice Gleeson and Justices Gummow and Hayne held that ‘a citizen of the United Kingdom was a subject or citizen of a foreign power within the meaning of s 44(i) of the Constitution and therefore incapable of being chosen as a senator.’
Re Day [No. 2] 2017
2.50
Mr Bob Day was returned as a senator at the 2016 federal election. In November 2016, the Senate referred Mr Day to Court of Disputed Returns due to a potential pecuniary interest with the Commonwealth. In particular, the question concerned a lease between the Commonwealth and Fullarton Investments, a trustee of the Day Family Trust to which Mr Day was a beneficiary. The Trust owned the property Mr Day was using as his electoral office. The High Court held that ‘Mr Day had an indirect pecuniary interest in the lease between Fullarton Investments and the Commonwealth, which disqualified him from being chosen or from sitting as a senator.’
2.51
A joint submission from Associate Professor Gabrielle Appleby, Professor Rosalind Dixon and Mr Lachlan Peake noted that the ruling overturned the earlier decision of Re Webster, by taking a broad view of a person’s interest in agreements with the Commonwealth. Their submission added that despite this ruling, ‘there remains significant uncertainty’ concerning s. 44(v) and pecuniary interests.
Re Culleton [No. 2] (2017)
2.52
Mr Rodney Culleton was returned as a senator at the 2016 federal election. Prior to nomination, Mr Culleton had been convicted, in his absence, on a charge of larceny and was liable to sentenced to up to two years imprisonment. While this charge was subsequently annulled, the Senate had already referred the matter to the Court of Disputed Returns.
2.53
Justices Keifel, Bell, Gageler and Keane held that at the time of the election, Mr Culleton was ‘a person who had been convicted and was subject to be sentenced for an offence punishable by imprisonment for one year or longer. That was so both as a matter of fact and as a matter of law. The subsequent annulment of the conviction had no effect on that state of affairs and it followed from s 44(ii) that Mr Culleton was ‘incapable of being chosen’ as a Senator.
2.54
Professor Anne Twomey submitted that this case suggests consideration should be given to ‘how to deal with appeals or the subsequent quashing of a sentence.’ Professor Jeremy Gans said that s. 44(ii) is affected by the criminal laws in State and Territory jurisdictions and the related procedures for initiating prosecutions and administering sentences. He said:
The High Court has ruled, for example, in New South Wales that annulments don’t retrospectively restore a conviction, but, at the same time, appeals do—and that’s going to be a different ruling for every jurisdiction in Australia.
2.55
He added that criminal matters–for example, a matter involving contempt of a State court–‘could happen in a very politicised context’.
2.56
Professor Twomey noted that some sentences involve no term of imprisonment. She added sentences can be very short; however, if the maximum sentence is 12 months or longer, the person is disqualified.
Re Canavan; Re Ludlam; Re Waters; Re Roberts [No. 2]; Re Joyce; Re Nash; Re Xenophon (2017)
2.57
In July 2016, six Senators and one member of the House of Representatives were referred to the Court of Disputed Returns, to determine their eligibility for Parliament under s. 44(i) of the Constitution. The Court found that all except two of the referred Senators were ineligible to sit in the Parliament owing to their dual citizenship. The Court followed previous rulings in Sykes v Cleary (1992) and Sue v Hill (1999).
2.58
Ms Hollie Hughes, an unsuccessful candidate for the Senate at the 2016 election, was ascertained by a special count to be eligible to be elected to the Senate place vacated by Ms Fiona Nash as a result of this decision. This determination, however, raised the question of Ms Hughes’ qualification under s. 44(iv).
2.59
Following the 2016 election, Ms Hughes was appointed to a position on the Administrative Appeals Tribunal, an ‘office of profit under the Crown’ within the meaning of s. 44(iv). She resigned this position following the High Courts’ ruling on Ms Nash’s disqualification and the resulting vacancy in the representation of New South Wales in the Senate.
2.60
The High Court found Ms Hughes also to be disqualified because she:
…held an office of profit under the Crown during a period in which the disqualification of Ms Nash from being validly returned as elected meant that the process of choice prescribed by the Parliament for the purpose of s. 7 of the Constitution remained incomplete.
2.61
Professor George Williams informed the Committee in relation to this decision that:
The effect of the Hughes decision in the High Court means that any unsuccessful Senate candidate now must remain on notice for the full six-year period before the current incumbent ends up exhausting their time. But that person remains on notice and cannot take up any position that might give rise to a disqualification. It means disadvantaging police officers, firefighters or people who work as schoolteachers—a whole of professionals quite dramatically affected by that decision and generally by section 44.
Re Gallagher
2.62
Senator Katy Gallagher lodged her nomination as a candidate for election to the Senate on 31 May 2016, and was returned as a senator on 2 August 2016. Ms Gallagher was a British citizen by descent until 16 August 2016. Ms Gallagher had applied for renunciation of her British citizenship prior to nomination. On 1 July 2016 further documents were requested by the United Kingdom Home Office, and provided by Ms Gallagher.
2.63
Ms Gallagher argued that she had taken ‘all reasonable steps’ to renounce her citizenship and therefore fell within the exception to the requirements of s. 44(i) established by Sykes v Cleary.
2.64
The High Court held that the exception to s. 44(i) requires two preconditions; first, that the foreign law operates ‘irremediably to prevent an Australian citizen from participation’, and secondly, that the person has taken all steps reasonably required by the foreign law to free him or herself of the foreign nationality.
2.65
In Ms Gallagher’s case, the foreign law of Britain did not operate to irremediably prevent an Australian citizen from ever achieving renunciation of citizenship. Therefore the constitutional imperative that gave rise to the implicit qualification in s. 44(i) was not engaged. The High Court held that Ms Gallagher was disqualified under s. 44(i).