Member for Tangney
Quite simply, all the resignations and vacancies of Members of Parliament as a result of holding dual citizenship during the 45th Parliament would have been absolutely avoidable if those Members of Parliament had taken action to investigate their own circumstances and free themselves of disqualifications under Section 44 of the Constitution prior to nomination as a candidate for election. The rules are clear and have not changed. However, while the rules are clear and have not changed, they have not been well understood or communicated. You cannot lay sole responsibility at the feet of those affected Members of Parliament. More needs to be done to support those individuals who seek elected office to fully understand what action they must take to ensure they are qualified under the Constitution.
Constitutional change is not required to achieve better understanding and compliance with the rules. A range of administrative mechanisms can be adopted to prevent the disqualification of Members of Parliament and to assist individuals prior to seeking nomination. The Committee’s report suggests that having to take certain action when considering candidacy for elected office is in some way an irremediable barrier. Yes, there are hurdles for some; there are arrangements that need to be investigated and actions taken to ensure compliance with the Constitution. However, those individuals are seeking to be elected to the Parliament of Australia, and are not, for example creating an iTunes account.
There are legislative and procedural options available that this Committee has identified as interim solutions. These deal with issues relating to the referral of matters during the term of the Parliament and with disclosure requirements at the time of nomination. The Government and Parliament should consider these options as permanent options. Nonetheless, these alone may not be effective unless other administrative mechanisms are adopted and operate in conjunction. Support can be given to potential candidates to fully understand their obligations and to provide assistance to those seeking to remove any foreign citizenship.
Commentary, including in the Committee report, that as a result of Section 44(i) some Australian citizens would forever be prevented from being elected to public office is incorrect. The High Court has confirmed, ‘that an Australian citizen not be irremediably prevented by foreign law from participation in representative government.’
The Committee recommends that the Parliament delete from the Constitution the setting of disqualifications of Members of Parliament. On this point I fundamentally disagree. The Constitution is the correct place to deal with the disqualifications of Members of Parliament, and not the Parliament itself as proposed. By adopting this position, the Committee is effectively asking the Australian people to remove their direct say in who should be disqualified as a Members of Parliament and to give that determination to the politicians themselves. Not only should this not happen, it is extremely unlikely to pass in a referendum. The Committee acknowledges the difficulty in passing a referendum on this matter, yet its primary and permanent solution is to recommend significant constitutional change.
I believe that there has been no compelling argument to remove the requirement that Members of Parliament should only be Australian citizens and hold no other citizenship. Members of Parliament should only have citizenship of Australia and not hold citizenship of foreign countries. While international comparisons are useful they provide no justification for change.
Like many others, I will campaign against any constitutional change that attempts to remove from the Constitution the disqualification of dual citizens from being Members of Parliament. However, if the Government considers that administrative and procedural changes alone are not sufficient, then the only constitutional change that should be considered should be changing the point at which disqualification takes place. This could change from the point of nomination, to the point of being sworn in as a Member of Parliament. In this scenario only those actually elected would have a requirement to deal with potential disqualification, prior to being sworn in as a Member of Parliament. Such a change would resolve the issues identified by this Committee and retain important constitutional objectives.
The Committee should have recommended options that do not require constitutional change in the first instance and then a variety of constitutional change options for consideration by the Parliament and the wider Australian community, rather than making such a direct recommendation for constitutional changes as it has done. Both of the Committee’s constitutional amendment recommendations transfer the determination of qualifications from the Constitution and the people to the Parliament and politicians.
My report is outlined in the following themes:
the consistency of the interpretation of the Australian Constitution;
setting a higher standard for our elected representatives;
the role of the Australian Constitution versus politicians in dealing with matters of disqualification;
referral procedural reforms; and
minimal constitutional change that preserves the constitutional principles and can pass.
While our conclusions differ, I share the same love of our democracy as my Committee colleagues. The way parliamentarians from different parties, Houses and States have cooperated on this inquiry should instil great pride in our democracy. I thank in particular Committee Chair, Senator Reynolds, for whom I have great respect. I thank Senator Reynolds for her work in guiding the Committee though our deliberations.
The consistency of the interpretation of the Australian Constitution
In the simplest of terms, prior to nomination, candidates must complete any and all processes available to them to remove any constitutional disqualifications to their election.
Despite attempts by some to suggest that the High Court has in some way provided a new interpretation on what reasonable steps are required, the most recent Gallagher decision confirmed a consistent approach in Sykes v Cleary and Re Canavan.
The principal submission of the Commonwealth Attorney‑General is that it is not enough for a candidate merely to have taken steps to renounce his or her foreign citizenship. Unless the relevant foreign law imposes an irremediable impediment to an effective renunciation, it is necessary that a candidate actually have divested himself or herself of his or her status as a foreign citizen before the commencement of the process of being chosen to which s 44(i) applies…. The Attorney-General's primary submission is clearly correct. It reflects the law stated in Sykes v Cleary and Re Canavan.
Senator Gallagher's contention is that because she had done all that was required of her by British law and which was within her power to do, everything that occurred thereafter under British law which prevented her nomination is to be regarded as an irremediable impediment. Such a submission finds no support from what was said in Re Canavan. It is not sufficient for the exception to s 44(i) to apply for a person to have made reasonable efforts to renounce. In Re Canavan it was explicitly said that the majority in Sykes v Cleary did not suggest that a candidate who made a reasonable effort to comply with s 44(i) was thereby exempt from compliance with it.
Avoidance of the disqualification so as to preserve the ability to participate in a particular election therefore demands a degree of vigilance on the part of a potential candidate not simply as to the taking of available remedial action but also as to the timing of that available remedial action. Just as it was held in Sykes v Cleary to have been the responsibility of Mr Cleary to have ensured that his resignation as an officer of the Victorian teaching service took effect before his nomination for the election which occurred on 11 April 1992 if he was to escape the disqualifying effect of s 44(iv) so as to be capable of being chosen as a member of the House of Representatives in that election, it was the responsibility of Senator Gallagher to ensure that renunciation of her British citizenship took effect under the law of the United Kingdom before her nomination for the election which occurred on 2 July 2016 if she was to escape the disqualifying effect of s 44(i) so as to be capable of being chosen as a senator in that election.
The Committee’s report incorrectly suggests that a whole range of people will be forever disqualified from seeking election as a Member of Parliament. For example:
those unsuccessful in clearing all disqualification barriers will forever remain ineligible to nominate.
The High Court has made it clear that if there is a step required by foreign law, which is reasonably open to the person, then it must be taken. This is not to say that if there are no steps that that person will be forever disqualified.
It would be wrong to interpret the constitutional provision in such a way as to disbar an Australian citizen who had taken all reasonable steps to divest himself or herself of any conflicting allegiance … [Section 44(i)] … could scarcely have been intended to disqualify an Australian citizen for election to Parliament on account of his or her continuing to possess a foreign nationality, notwithstanding that he or she had taken reasonable steps to renounce that nationality.
Consistently with that view, the Court in Sykes v Cleary recognised that an Australian citizen who is also a citizen of a foreign power will not be prevented from participating in the representative form of government ordained by the Constitution by reason of a foreign law which would render an Australian citizen irremediably incapable of being elected to either house of the Commonwealth Parliament.
In Re Gallagher the High Court expressed that its decision was a re-application of what had already been set out in Re Canavan:
In Re Canavan this Court accepted that s 44(i) is subject to an implicit qualification which arises from the constitutional imperative underlying it. The constitutional imperative was stated to be "that an Australian citizen not be irremediably prevented by foreign law from participation in representative government.
Section 44 and the decisions of the High Court have placed hurdles for some to ensure they are not disqualified. However, these hurdles are not irremediable barriers, as the Committee has suggested.
Individuals nominating to be elected as a Member of Parliament are taking a serious, deliberate and considered action. Not an action that is done on a whim. No Australian Citizen is irremediably prevented by foreign law from participation in representative Government.
The Committee considers the impact of disqualified, unsuccessful candidates on the election of qualified, successful candidates:
The impact of this [disqualified unsuccessful candidate in an election] 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.
The matter of Re Wood in 1988 touches on this issue and must be considered in the context of the scenario given:
The problem of want of qualification arises under the Act if an unqualified candidate is elected, but an election is not avoided if an unqualified candidate stands. If it were otherwise, the nomination of unqualified candidates would play havoc with the electoral process, for the ministerial officer who accepts nominations has no general power to refuse a nomination in due form: see s.172 of the Act.
In other words, the inclusion of an unqualified candidate does not make the ballot paper informal. It doesn't invalidate the entire election. It only becomes an issue “once the return of the unqualified candidate has been held to be invalid.”
Setting a higher standard for our elected representatives
While the Committee states that it makes no judgement on the dual citizenship issue, the Committee's recommendations can or will remove from the Constitution the requirement that Members of Parliament be only citizens of Australia and not also citizens of other Countries. There can be no certainty that a future Parliament will retain this important disqualification. In my view, the report, read as whole, seeks to make the case for the removal of the requirement that Members of Parliament be only citizens of Australia and not also citizens of other Countries.
Australia has benefited from people from all over the world making our nation their home. We are truly a very successful modern, multicultural nation. However, while the Committee rightly points out that many Australians have dual citizenship, this should not mean that Members of Parliament not be held to a higher standard.
Mr Simon Cowan gave evidence that:
Much is made of the fact that Australia has many migrants, and so many potential dual citizens. But I would submit that this is actually less important than claimed, because section 44 does not forever prohibit the political participation of dual citizens. If it did, as, for example, article II of the US constitution prohibits those born outside the US from becoming President, a better case could be made for change. Dual citizens are entitled to stand for parliament, be elected and hold the office of Prime Minister. The only requirement is that they shed the potential conflict of interest arising from their dual citizen status before they do so. The obligations of section 44, in my view, are not an onerous burden for the vast majority of the population, and having such a provision in our Constitution sends the message very clearly that politicians should have unequivocal and undivided loyalty to Australia and its people. This is neither too great a price to pay nor an outdated idea.
Dr John Cameron was of the view that:
I may well be a citizen of the United Kingdom as well—I don't know—but I don't believe that I should be in the Australian parliament until such time as I'm prepared to devote to divesting myself of the other citizenships and to demonstrate to those whom I expect to vote for me that I am solely devoted to the interests of Australia. I don't believe that we do hold members of parliament to a higher standard, in the sense that it has been suggested that in some way a large part of the electorate is refused entry to the parliament because they are dual citizens. All they have to do is what I could do: renounce the other citizenships and demonstrate their single allegiance to Australia.
Many other witnesses also gave evidence in support of the requirement that Members of Parliament be only citizens of Australia and not also citizens of other Countries. I am strongly of the view that to sit as a Member of the Australian Parliament you should only be an Australian Citizen and not a citizen of another nation. Giving away the citizenship of another country to take the privilege and responsibility of being a Member of the Australian Parliament is not an unreasonable requirement.
Australian Constitution v politicians in dealing with matters of disqualification
The Constitution’s drafters foreshadowed that Australian society would change over time and included the ability for the Australian people to change the Constitution through a referendum.
This process is not easy but allows Australians to have a direct say in that change. In other sections of the Constitution, as the Committee rightly points out, provision has been made to allow the Parliament to make changes, “until the Parliament otherwise provides.” Section 44 dealing with disqualifications was not one of them.
Paragraph 2.5 of the Committee’s report deserves further emphasis:
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.
This matter was actively considered and voted on. There was a decision made that only the Australian people though referendum should determine who should be disqualified from being a Member of Parliament.
The Committee’s recommendations ask the Australian people to override the consideration given by the Constitution’s drafters and to remove their direct say in the disqualifications of Member of Parliament. The Committee’s recommendations give that say only to the politicians.
Liz Burton, University of Melbourne, makes the case:
There is concern that this frustration with the process conflates operational performance outcomes with the purpose of the section, without giving due recognition to its strategic functions. In doing so, changes or repealing the provisions can undermine important core pillars protecting Australia’s democratic framework.
Mrs Lorraine Finlay said that in its current form, Section 44 provides ‘certainty, consistency and stability’ and removes partisan considerations. She also noted that Section 44 relates to more than citizenship:
it seems a little bit difficult to formulate an argument that, for example, someone should only be disqualified for treason until parliament otherwise provides.
These fundamental disqualifications should remain in the Constitution and should only be adjusted by way of referendum with the Australian people having a direct say.
Administrative reforms
The obligation to comply with Section 44 is on candidates themselves. The Australian Electoral Commission’s resources for candidates clearly state this. A candidate is required to formally declare, as part of their nomination, that they are ‘qualified under the Constitution and the laws of the Commonwealth to be elected.’
Mr Tom Rogers gave evidence explaining that:
The AEC conducts pre-election briefings for intending candidates at the national, state and divisional level. All briefings provide intending candidates and party representatives with relevant information relating to eligibility requirements under section 44.
That said, more needs to be done to support those individuals who seek public office, to fully understand what action they must take to ensure they are qualified to be a Member of Parliament under the Constitution.
Constitutional change is certainly not required to achieve better understanding and compliance with the rules. Administrative mechanisms can be adopted to prevent the disqualification of Members of Parliament and to assist individuals prior to seeking nomination.
A number of witnesses held the view that politicians could have entirely avoided this situation with greater vigilance, and consequently, Section 44 should not be altered.
Professor Anne Twomey gave evidence that:
My personal view is that there is no necessity to amend s. 44(i) of the Constitution. The current problem was not caused by a matter of principle, but rather by the fact that some Members and Senators did not make the effort to inquire into their circumstances and take the necessary steps at the appropriate time to avoid disqualification.
A number of witnesses gave evidence that additional support can be given to potential candidates to assist them ensuring they are qualified.
Professor George Williams AO, Dr Sangeetha Pillai and Harry Hobbs, who seek constitutional change, also see potential in ‘the longer-term, administrative services such as more comprehensive pre-nomination questionnaires, and services to assist candidates to ensure they comply with disqualification rules have the potential to serve as practical aids’.
The AEC in evidence suggested an online self-assessment tool:
Moving forward, and as a suggestion to minimise the chances of the current situation occurring again—and here I'm looking at non-legislative solutions—it may be possible for the AEC, with the provision of funding and a range of other issues, to develop a comprehensive online self-assessment tool for potential candidates as part of the nomination process. Without absolving the candidate's responsibility to ensure the veracity of statements made during the process, such a tool, or a checklist, based on section 44 criteria, could take candidates through a step-by-step process—or, I should say, a further step-by-step process—to help determine whether or not they're eligible to nominate. It could buttress the existing nomination form, which already includes a statement and declaration of eligibility as to the candidate's citizenship, age, qualification as elector, and qualification under the Constitution and the laws of the Commonwealth. As an aside, the nomination form specifically refers to both citizenship and section 44 to ensure nominees are aware of the provisions before making their declaration.
The intention of the self-assessment tool that I've just outlined would be to assist the candidate to understand their eligibility requirements to nominate, not for the AEC to approve eligibility. As the Standing Committee on Legal and Constitutional Affairs stated 20 years ago, it should not be the AEC's role to vet potential candidates. The AEC made the following statement in its submission to the Legal and Constitutional Affairs Committee in 1997. It's as relevant now as it was then. We said: “… it has been concluded that such an extension of the role of AEC officers into areas of factual analysis and Constitutional interpretation in the limited time available at nomination would be impractical and unworkable. The responsibility for ensuring that they are legally qualified rests squarely with the candidate, and if in doubt candidates are urged by the AEC to seek their own legal advice.
On notice, the AEC confirmed that the online self-assessment tool should be linked with the Attorney-General’s Department, Department of Home Affairs, Department of Immigration and Border Protection and Department of Foreign Affairs and Trade. This tool would be available at any time, not just around elections.
I recognise that there are, very rightly, concerns about the involvement of the AEC in ‘vetting candidates.’
Lorraine Finlay stated in a public hearing that:
I would strongly endorse the view that the Australian Electoral Commission ‘should have no role in giving legal advice to candidates, and no role in going behind a candidate’s declaration that he or she is eligible to stand for election’. It is vitally important that the AEC is seen to be independent and impartial in the way it conducts elections, and there is a real risk that this could be undermined if they were asked to provide legal advice to candidates or to perform any type of vetting function. Similarly, there is a risk whenever legal advice is given that it could lead to subsequent legal challenges, or leave the AEC open to criticism were they to give incorrect advice. This must be considered a real risk in these circumstances given the uncertainty that has recently surrounded the interpretation of s. 44. It would also be entirely impractical to ask the AEC to conduct ‘s. 44 checks’ on nominated candidates, given the sheer number of candidates and the short time-frame between the close of nominations and the subsequent steps in the election process.
The AEC should not be involved in the vetting of candidates. The Committee is agreed on this point. However, there is an argument for the creation of a Foreign Citizenship Renunciation Advice and Support Office (FCRASO). Such an office could comprise officials from the Attorney-General’s Department, Department of Home Affairs, Department of Immigration and Border Protection and Department of Foreign Affairs and Trade. In the first instance, the office would be responsible for the creation and maintenance of the publicly available database containing details of possible foreign citizenships and processes for renunciation. The FCRASO could then provide an easy to use self-assessment tool for potential candidates and other interested citizens.
The FCRASO would also be able to provide support for potential candidates for election with the process of renunciation. Individuals would remain responsible for ensuring that they have engaged support early enough to ensure that the entire process is completed prior to nomination. Support can be offered with a deposit equal to the nomination fee payable by candidates to the AEC and then refunded when the individual does in fact nominate. On this basis this service would be free to those who use it to ensure compliance prior to seeking election.
The Department of Foreign Affairs and Trade should also enter into Memoranda of Understanding with foreign nations to establish a process where applications for renunciation made through the FCRASO can be fast tracked on the basis that the individual is seeking election as a Member of Parliament.
Recommendation
That the Australian Government establish a Foreign Citizenship Renunciation Advice and Support Office to assist potential candidates in understanding their constitutional obligations and to provide support in the renunciation of foreign citizenship.
Recommendation
That the Department of Foreign Affairs and Trade enter into Memoranda of Understanding with foreign nations to establish a process where applications for renunciation made through or with the support of a Foreign Citizenship Renunciation Advice and Support Office can be fast tracked.
Australian Public Service and Australian Defence Force Members
The Committee raises concerns about the impact of Section 44 on the Australian Public Service (APS) employees and Australian Defence Force (ADF) members and the requirement that they resign prior to nomination. Despite these concerns, many former Public Servants and Defence Force members have been elected to Parliament.
The APS and ADF are obligated to reemploy APS and ADF members who resign to contest election but are unsuccessful. The ADF Manual for Pay and Conditions, as well as Section 32 of the Public Service Act 1999, clearly sets out the regulatory basis for re-employment which addresses the concerns around s44(iv).
There is an inequity in relation to the payment of salary during this period. Many in the private sector may take annual or long service leave to contest an election; this option is not available to APS and ADF members.
Recommendation
That the Australian Government consider ways that that would allow APS and ADF members to draw down additional leave entitlements prior to them resigning to contest an election, or after the election in the event they were unsuccessful.
Disclosure at time of nomination
There is support to have full disclosure of matters relating to a candidate’s family history at the time of nomination and any other matters relevant to Section 44.
I believe that more effective would be if nominations were to be put on the public record at the time of nomination—in other words, if you could check the candidate's qualification at the time they nominated… I believe that all candidates should have their nomination forms on the public record, and then there is a possibility of challenging before they are elected or immediately after they're elected, if they're elected.
MBSC Australia, a non-partisan not-for-profit organisation, submitted:
To prevent the current ‘dual citizenship fiasco’ under Section 44(1) it is recommended, as part of the nomination requirements of prospective candidates, a more comprehensive questionnaire which requires ‘proof of Australian citizenship’ and ‘proof of renunciation of any foreign citizenship’ prior to accepting nominations from candidates. We support the strict enforcement of the Constitutional Law dealing with Dual Citizenship as the rule of law vital to our democracy, by holding our Multicultural Society to a common standard.
It is often said that sunlight is the best disinfectant and I see no reason why candidates should not also disclose at nomination the information that they would be required to disclose if elected. The process of doing so will reinforce the need to ensure compliance.
Recommendation
That the Australian Government put in place a requirement for candidates to disclose, at the time of nomination, all information that may be relevant to potential disqualification under Section 44.
Referral Procedure reforms
The Committee outlines a number of reform options as “early measures.” The Committee is of the view that these are not long-term solutions. However, combined with the administrative reforms I have recommended, these referral procedure reforms should be considered by the Government as possible long-term reform options. The disclosure of information relevant to disqualifications at the time of nomination mentioned above is one of these.
The Committee’s report outlines Section 47 of the Constitution and is worthy of further emphasis here:
Section 47: Until the Parliament otherwise provides, any question respecting the qualification of a senator or of a member of the House of Representatives, or respecting a vacancy in either House of the Parliament, and any question of a disputed election to either House, shall be determined by the House in which the question arises.
It is in fact the respective Houses and not the High Court that the Constitution gives the responsibility of determining eligibility of Members of Parliament.
Section 47 includes ‘until the Parliament otherwise provides’ and the Parliament in 1918 in Part XXII of the Commonwealth Electoral Act 1918 created the Court of Disputed Returns.
The Parliament can, under Section 47, restore the respective Houses as the sole determining authority of the eligibility of its Members.
The respective Houses have not given away their ability to determine these matters entirely; they still retain the ability to determine such matters.
In the case of the Member for Leichhardt, as referenced in the Committee’s report, the House of Representatives passed an amended motion that “… the Member for Leichhardt is therefore not incapable of sitting as a Member of this House.”
The then Attorney General, Mr Williams in the debate said:
There is no suggestion within (the Electoral Act) that this house has prevented itself from utilising the procedure set out in section 47 of the Constitution. … By providing one procedure there is no exclusion of another.
There was earlier precedent of such action in 1977 regarding the possible disqualification of the Member for Macarthur. The matter could be referred to the High Court under the Electoral Act or determined by the Parliament under Section 47 of the Constitution. The then Attorney General, Mr Ellicott argued that ‘because of the question and the answer that can be given to it, this House should determine the matter and not send it off to the High Court.’
The High Court has most recently confirmed the position of the Houses and their primary authority to determine these matters:
The authority given in s 47 to the Houses of the Commonwealth Parliament to determine the questions there stated, and the denial of that authority to the courts unless Parliament otherwise provided, is confirmed by the Convention Debates and it is confirmed by authority.
…
The relevant effect of the section is that, unless the Parliament otherwise provides and to the extent that the Parliament does not otherwise provide, "any question" which answers the description of a "question respecting the qualification of a senator" can only be determined by the Senate and "any question" which answers the description of a "question respecting the qualification of a … member" can only be determined by the House of Representatives.
Absent the Parliament otherwise providing for the purpose of s 47 of the Constitution by a law enacted under s 76(i)or(ii) or s 77(i)or(iii) of the Constitution, no question respecting the qualification of a senator or of a member is within the adjudicatory competence of the High Court or of any other court.
In a public hearing in Canberra, Mr Guy Reynolds SC gave evidence in relation to the Parliament’s powers under section 47:
Section 47 deals with the determination of various matters which are set out in that section. Basically, the parliament, under section 51(xxxvi) has a plenary power to deal with the matter raised in section 47—that is, to pass laws about who shall determine the various matters referred to in section 47. That gives the parliament power, subject to the remainder of the Constitution; to limit or restrict the role of anybody it gives power to under that provision. For example, you can have—and this is featured in the Electoral Act—a limitation provision, which limits the time within which such matters can be brought before a court or before any other body.
So, in short, section 51(xxxvi) gives a fairly full power in relation to determination of the issues referred to in section 47—as to who determines those matters, how they determine them, the manner in which those matters are determined et cetera.
The Parliament has the power to return some or all of the considerations of these matters relating to the Qualification of Members of Parliament, to the respective Houses.
I think section 51(xxxvi) would enable the parliament to bring all of the powers that previously existed under section 47, and which inhered in the parliament, back to the parliament or—putting it another way, as you have—to eliminate the powers of the Court of Disputed Returns to consider those matters, and also the High Court's power to consider those matters on a reference.
…
There's no reason why the parliament could not give the High Court some of the issues and keep others for itself.
…
I don't see any reason why, if the parliament chose to do so, the relevant house could not determine issues such as foreign citizenship.
Evidence was received advocating improved processes and guidelines within the Parliament prior to referral. Lorraine Finlay said:
It may be useful to consider whether providing internal referral guidelines, or even some independent mechanism to assess whether referral is warranted in an individual case, would provide for a more transparent process that ensures Parliament focuses on the legal issues rather than political factors when considering referrals.
The Australian people seek stability in their political institutions. The 40-day time limit from the return of the writs should remain and elections be open for challenge to the Court of Disputed Returns on matters such as disqualifications of Members of Parliament. These time limits give a window of opportunity to raise matters that were the subject of public disclosure (as previously recommended), and provides certainty that matters cannot be raised again during the life of that Parliament.
As Mr Reynolds SC said in evidence to the Committee:
The policy behind the 40-day period is to not leave a period of further uncertainty beyond those 40 days during which there is doubt about who the government is or, to look at the smaller question, about who the relevant member or senator is.
Allegations of breaches not disclosed at the time of nomination or that arise thereafter, require a non-partisan process for review and consideration. The bi-partisan Privileges Committee is best placed to fulfil this role. The Privileges Committee can recommend to the relevant House, based on its inquiries, whether or not there is a prospect that Section 44 has been breached and, on that basis whether the relevant House should refer the matter to the Court of Disputed Returns. Of course, the Privileges Committee could come to a view similar to the view taken in the case of the Member for Leichhardt, in which case there would be no referral to the Court of Disputed Returns.
I do not support the respective Houses taking back the sole ability to determine the eligibility of Members of Parliament.
Recommendation
That the Senate and the House of Representatives agree to only make a referral to the Court of Disputed Returns after a recommendation from the Privileges Committee if the breach arises from information that was not publicly disclosed or arose after nomination.
Minimal constitutional change that preserves the Constitutional principles and can pass
As the Committee has rightly observed, constitutional change is difficult. 19.8% of Australians, representing the majority in each of the four smallest states can vote no and a referendum will be defeated. Great care should therefore be taken when proposing possible referenda.
The High Court’s interpretation of the words ‘being chosen’ in Section 44 of the Constitution is taken to include the election period when the candidate nominates.
As the Committee Report outlines, a number of witnesses said the broad legal meaning of ‘being chosen’ is excessive and causes complications for Parliament and candidates.
Only in the event the Government considers that administrative and procedural changes alone are not sufficient, should the Government consider constitutional change to move the point at which disqualification takes effect from the point nomination, to the point of being sworn in as a Member of Parliament. This would resolve the issues identified by this Committee, while retaining the important constitutional objectives and principles.
In this scenario, only those elected would have a requirement to deal with the disqualifications prior to being sworn in as a Member of Parliament. It would also remove all of the issues with APS and ADF members and others who hold an office of profit under the Crown.
This change, unlike those recommended by the Committee, will not transfer the determination of qualifications from the Constitution and the people to the Parliament and politicians.
At the 2016 federal election there were 1,625 candidates. Only 150 were elected in the House of Representatives and only 75 in the Senate. Yet all candidates were required to ensure eligibility even though most would never be elected.
Some witnesses have dealt with this issue with some suggesting other points in time to determine eligibility.
Lorraine Finlay suggests the return of the writs:
A further amendment that would have a positive impact on a number of the sub-sections under s. 44 would be to consider altering the time at which eligibility needs to be established. In Sykes v Cleary [No. 2] the majority approach (which has become the accepted position) is to view the words ‘shall be incapable of being chosen’ in s. 44 as referring ‘to the process of being chosen, of which nomination is an essential part.
This means that eligibility is judged to be at the time of nominating as a candidate.
A narrower construction was adopted by Deane J who interpreted the relevant time as being the declaration of the poll, which represented the final step in the procedure for choosing the particular parliamentarian.
There are compelling arguments for amending the words ‘shall be incapable of being chosen’ to ensure that the time at which eligibility is determined is either the declaration of the polls or, preferably, the return of the writs. This would provide greater certainty to candidates, maximise participation by ensuring that candidates are not required to take potentially irreversible actions simply in order to contest an election, and provides successful candidates with a window of opportunity (immediately following the election but before the return of the writs) to deal with any eligibility issues.
This view is broadly shared by Professor Twomey and Associate Professor Luke Beck.
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.’
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.
Mr Simon Cowan from the Centre of Independent Studies gave strong evidence in support of existing Constitutional arrangements, and has committed to campaign against change to the Constitution. Mr Cowan considered the option of minimal constitutional change to adjust the date at which the disqualification takes place, and concluded that many of his concerns would be resolved under such a scenario, as the following Hansard excerpt demonstrates:
Mr Cowan: Just as an initial observation, the idea of a grace period, where you are prohibited from sitting or making decisions, either through law or through custom of parliament, certainly has a degree of attraction. We talk a lot about the difficulties for candidates in this context, but this is happening in conjunction with an investigation in the US, for example, into inappropriate connections between the incoming regime and Russia, and the perception of a conflict of interest that arises as a result of that. There's still going to be the potential for a conflict in those circumstances, but I think the actuality of that conflict arising is a lot less with a grace period.
Mr MORTON: You would support constitutional change that maintains that elected parliamentarians can't hold dual citizenship, so long as there's a period after being elected in which to extinguish that dual citizenship?
Mr Cowan: My initial thought is that that would probably be satisfactory. I'd like to think about that a bit more, because that's the first time I've heard that idea, but certainly a lot of my concerns would be resolved.
If the Government considers constitutional change, then the only option it should consider is to adjust the date at which disqualifications take effect, from nomination to a later date.
When matters arise during the life of a Parliament, affected Members of Parliament should be suspended from the House or Senate and given time to rectify any previously unknown foreign citizenship before retaking their seat and avoiding a costly by-election.
By using a date, such as the swearing in of the Member of Parliament, that date can be adjusted if additional time is required, within reason. Not all Members of Parliament need be sworn in on the opening day of Parliament. Hard dates, like the return of the writs, cannot be adjusted.
A joint submission from Professor Rosalind Dixon, Associate Professor Appleby and Mr Lachlan Peake posed an option of amending s. 44 to allow a grace period:
language could also simply be added to end of s 44… so that it reads something like:
… and does not within 3 months of being elected take all reasonable steps to renounce, discharge or discontinue this foreign citizenship; bankruptcy or insolvency; office of profit, pension, or pecuniary interest … shall be incapable of taking their seat as a member of Parliament.
Recommendation
Only in the event that the Government considers that administrative and procedural changes alone are not sufficient, should the Government consider constitutional change to move the point at which the disqualification of Members of Parliament takes place, from prior to nomination, to a point prior to being sworn in as a Member of Parliament, to resolve the issues identified by this Committee, while retaining important Constitutional objectives and principles.
Minority Report Recommendations
Recommendation:
That the Australian Government establish the Foreign Citizenship Renunciation Advice and Support Office to assist potential candidates in understanding their constitutional obligations and to provide support in the renunciation of foreign citizenship.
Recommendation:
That the Department of Foreign Affairs and Trade enter into Memoranda of Understanding with foreign nations to establish a process where applications for renunciation made through or with the support of the Foreign Citizenship Renunciation Advice and Support Office can be fast tracked.
Recommendation:
That the Australian Government consider ways that that would allow APS and ADF members to draw down additional leave entitlements prior to them resigning to contest an election, or after the election in the event they were unsuccessful.
Recommendation:
That the Australian Government put in place a requirement for candidates to disclose, at the time of nomination, all information that may be relevant to potential disqualification under Section 44.
Recommendation:
That the Senate and the House of Representatives agree to only make a referral to the Court of Disputed Returns after a recommendation from the Privileges Committee if the breach arises from information that was not publicly disclosed or arose after nomination.
Recommendation:
Only in the event that the Government considers that the administrative and procedural changes alone are not sufficient, should the Government consider constitutional change to move the point at which the disqualification of Members of Parliament takes place, from prior to nomination, to a point prior to being sworn in as a Member of Parliament, to resolve the issues identified by this Committee, while retaining the important Constitutional objectives and principles.
Mr Ben Morton MP
Member for Tangney