MPs’ disqualification and Constitution section 44

I posted the piece over the fold some time ago (early January) but the fact that the federal Parliament’s Joint Standing Committee on Electoral Matters is about to publish its report into the ongoing legal and constitutional debacle surrounding the Parliamentary disqualification in Constitution section 44 suggests it’s worth reposting. It seems likely that both major parties will reject any suggestion that the Committee makes for a referendum to resolve the situation. Personally I think my suggested solution is more likely to meet with popular acceptance than most of the other possibilities, but then I would say that:

The slow motion debacle whereby federal MPs of all parties have been progressively unmasked as dual citizens (or entitled to the rights thereof) will continue once Parliament and the High Court resume for 2018.  Moreover, simply asserting that MPs and political aspirants will just have to be more careful is absurd, as anyone knows who has actually made a serious effort at understanding the complexities of the issues involved (potentially requiring exploration not only of candidates’ family backgrounds going back several generations, but also the esoteric legal minutiae of potentially two or three separate countries as well as Australia including relevant legal changes stretching back many decades).

Nevertheless, it is sadly clear from a dispassionate reading of both mainstream and social media that a referendum designed to remove this pointless burden on politicians would probably fail. Most other nations do not disqualify their citizens from eligibility for political office if they hold dual citizenship, nor do Australian states. But for whatever reason a very substantial proportion of the Australian public appears to think that Australia’s federal politicians should be required to jump through this legal hoop as a prerequisite to elective office.

Accepting that reality, maybe the parties could consider what is again a second best option but one that would be quite workable in my view. There should be a referendum involving a minimalist amendment to Constitution s44 which would remove the words “of being chosen or” so that the section would read:

Any person who 1 shall be incapable of being chosen or of sitting as a senator or member of the House of Representatives. …

The effect would be that only a successful candidate would need to worry about dual citizenship issues, resigning from public sector employment or divesting contracts with the Commonwealth. The section would go on to provide that the successful candidate would have 3 months from the date of declaration of the polls to comply with any relevant prohibitions before disqualification took effect. During that time they would have available appropriate advice and assistance from the Australian Government Solicitor to sort any such matters out. If they failed to do so the candidate with the next highest Senate vote would be declared elected, and a by-election would be needed for any disqualified MHR. Hopefully the majority of even Australians who have a perverse taste for putting prospective MPs through a Trial by Ordeal would think that was fair enough, and hopefully all parties could bring themselves to support it given that it is very likely that all will in the near future have suffered tangibly by the operation of the section as it currently reads.

  1. list of disqualification grounds including dual citizenship/allegiance, treason, bankruptcy, office of profit under the Crown etc[]

About Ken Parish

Ken Parish is a legal academic, with research areas in public law (constitutional and administrative law), civil procedure and teaching & learning theory and practice. He has been a legal academic for almost 20 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in the early 1990s.
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5 years ago

Democracies should hold either many referendums or none at all. The trouble with referendums held once in a blue moon is that they are in danger of becoming giant by-elections. Certainly at least some of the rather narrow Brexit majority was people who thought they were, to quote one interviewee on AM after the Brexit vote, ‘giving the government a good kicking’ rather than deciding to leave or remain within the EU.

I suspect a Section 44 referendum would be rather different because quite large numbers if Australians who are now prevented or impeded from standing for federal parliament, are likely to vote to give themselves equality with other Australians.

A far better proposal would be to adopt similar language to the state, Canadian and New Zealand constitutions where some positive act is required to trigger a dual nationality issue. Australia is unique in addressing status rather thame act by a prospective MP.

I say a proposal along the lines of the Parliament of Queensland Act 2001, Section 72(1) would have an excellent chance of success. Under that legislation a member loses their seat if, among other things:

(c) the member stops being an Australian citizen;

(d) the member takes an oath or makes a declaration or acknowledgement of allegiance, obedience or adherence to, or becomes an agent of, a foreign state or power;

I am and will always be Not Trampis
I am and will always be Not Trampis
5 years ago

I always though the interpretation of 44 in Sykes v Clearly not only easy to understand but passed the pub test which the current interpretation clearly does not.
Another example of their absurdity was Jim Molan replacing Fiona Nash

How come when courts re-interpret an law they do not tell us why they different from the previous court?

you have two kinds of problems here. People who made no inquiry when they had to suspect they were dual citizens all Barnaby and those who did indeed know they were but took acts to rectify that matter.
Better people than I thought those in the latter case would have got home in the Sykes V Cleary interpretation.

As for now anyone who thinks people are going to vote in the affirmative to change the constitution on even a minimalist change are living in dreamworld.

All parties now know what they have to do. Grin and bear it.

5 years ago

I find it hard to imagine why dual citizens would vote to keep themselves disqualified from the parliament. Estimates of dual citizenship in Australia ranged from 4 million to a majority of the population. The analysis that Australians vote against all referendums because Australians vote against all referendums is not utterly persuasive.

David Walker
David Walker
5 years ago

“How come when courts re-interpret an law they do not tell us why they different from the previous court?”

Generally they do. They do it better in some decisions than in others.

John R Walker
5 years ago
May be of interest.

From 1901 up to about 1960 all ( non indigenous)Australians were automatically British citizens , does that mean that anybody whose parents were born here prior to about 1960 could be eligible for UK citizenship?

Doubt that in 1901 that they intended to exclude British citizens from eligibility, after all that would have excluded every Australian from parliament , no?

5 years ago

I fail to see why this is such an issue. Surely any person holding a statutory position can only have single citizenship, as envisioned by the authors of the Constitution.

If the Minister/ Chief of Defence has dual citizenship, and the non-Australian citizenship country is hostile to Australia, who does s/he defend ? Citizenship has the central requirement of loyalty to the country of citizenship. But which country is s/he loyal to ? Two bob each way ? Straddling a barbed wire fence can be painful and cause severe injury.

Its a bit like marriage (“to the exclusion of all others”). If a person has 6 wives/ husbands (or mixture thereof), the loyalty is spread fairly thinly. And if there is conflict between spouses, who adjudicates ? There will be divided loyalties.

I would have also thought, that any intending candidate for election (even for election to the local tennis club committee) would have to sit an examination concerning the Constitution, covering the important bits. The examination should be conducted by the political party to which the candidate belongs, or if an Independent, the Electoral Commission (for a fee to cover costs). And the pass mark to be 98%.

Nominating for election into any House of Parliament is serious business – its more than the door knocking and town hall meetings. The early Constitution authors got it right.

And could the next Royal Commission be conducted at a country town. The hoteliers would appreciate the business. There’s good money in them.

Recent opinion polls indicates that most punters could not give a rats about the plight of the two timers. “All their fault, and we have to cop the cost of the by-elections” seems to be the general reply.

Yvonne Langenberg
Yvonne Langenberg
5 years ago
Reply to  Andy McNABB

It actually is an issue. You may believe yourself to have only Australian citizenship as the law of the land you left automatically revoked your citizenship upon becoming Australian and that ruling has since been changed. You may be born in an obscure country, of which you never had citizenship, where for whatever reason, they decide that everyone born in that country and their decedents are henceforth citizens. So in effect, you are saying it’s okay, that some other country is going to determine who can and cannot sit in parliament.
From nomination and endorsement to election is a relatively short time.

Bureaucracy is slow. Very slow. In order to renounce a citizenship, you first have to find out if you have citizenship-average 6 months. Then you have to renounce-another 3 + months. That is, if you even have all the information that is required at hand. Birth certificates, death certificates and marriage certificates of parents and yes, grand-parents.

If you have Australian citizenship and do not have a foreign passport should be enough.