Section 44 of the Australian Constitution which sets out the legal framework under the rule of law that disqualifies a person from sitting in Parliament has led to the resignation of a number of Federal Parliamentarians in recent weeks. The Australia Constitution is the document that sets out the legal framework of the rule of law within the Commonwealth of Australia and any constitutional law issues, such as the citizenship of Parliamentarians, is adjudicated by the High Court. The government has referred a number of matters to the High Court for a decision on the eligibility of Parliamentarians, these are detailed in this article. On the 23rd of September 2017, after a fact finding hearing at the High Court, Professor Jeremy Gans from Melbourne University Law School wrote this update on the cases.
Mr Robin Speed, the President of the Rule of Law Institute of Australia clarifies the rule of law in this article in the Australian and clearly states:
While the High Court is considering this matter, no politician should be required to resign or stand down. Australia is governed by the rule of law not by the rule of allegations.
This media mash-up below provides a curated selection of media on the issue and the rule of law implications of recent events.
The Constitution
Section 44 of the Constitution sets out restrictions on who can be a candidate for Federal parliament. In full it reads:
Any person who –
(i.)Is under any acknowledgement 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 citizen of a foreign power: or
(ii.) Is attainted of treason, or has been convicted and is under sentence, or subject to be sentenced, for any offence punishable under the law of the Commonwealth or of a State by imprisonment for one year or longer: or
(iii.) Is an undischarged bankrupt or insolvent: or
(iv.) Holds any office of profit under the Crown, or any pension payable during the pleasure of the Crown out of any of the revenues of the Commonwealth: or
(v.) Has any direct or indirect pecuniary interest in any agreement with the Public Service of the Commonwealth otherwise than as a member and in common with the other members of an incorporated company consisting of more than twenty-five persons:
shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.
But sub-section 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. Parliament of Australia
Media
The Australian Electoral Commission provides extensive information on Section 44 and the eligibility of people seeking to run for Parliament in their Electoral Backgrounder: Constitutional disqualifications and intending candidates.
Candidates intending to nominate for election to the Australian Parliament must ensure that they are qualified, and not disqualified, to stand for election under the provisions of the Act
Opinions on High writer Jeremy Gans sets out the key legal precedent in The High Court on Dual Citizen MPs
…the issue is not one of foreign ‘allegiance’ …Rather, the issue is their foreign citizenship.
Lorraine Finlay from Monash University in The Conversation questions the legal effectiveness of Section 44 in an explainer.
Given recent controversies, it would seem an opportune time to review Section 44 to make sure the disqualification provisions in our Constitution are clear, fair, and reflect voters’ real concerns.
The last census shows that the number of people born overseas is on the rise. Will Section 44(i) of the constitution forbid most of these people from running for office?
In fact the Constitution does not make reference to “dual citizenship” and the constitutional issues involved are not entirely clear.
But what about cases where someone was not in a position to take “reasonable steps”, because their second citizenship was unknown to them?
ABC News political reporter Matthew Doran analyses ‘the grey area in Section 44 of the constitution’
…if the High Court was to start saying everyone entitled to foreign citizenship was ineligible, it would wipe out a swathe of our MPs and senators who have never tried to claim allegiance to any other county.
Adam Gartrell Amy Remeikis of Fairfax Media write about the the recent inclusion of the Deputy Prime Minister in the referred matters to the High Court for the determination of citizenship and the application of Section 44.
Other Countries
Legislated requirements for eligibility for political office is not confined to Australia. A full list of countries and their eligibility requirements for political leadership can be found here.
