Unholy mess: Time for a Section 44 discussion

There is an unholy mess in the federal parliament, but you may not have noticed it because of the well, unholy mess in the federal parliament.

Paragraphs (iii) and (iv) Section 44 loomed large over the parliament elected in what seems an eon ago in 2016.

Bob Day from the now-defunct Family First (in coalition now with Australian Conservative Party) received his marching orders from the High Court under paragraph (iv) and One Nation senator turned independent, Rod Culleton managed the difficult feat of ticking two Section 44 boxes, paragraphs (ii) and (iii).

Then followed a steady stream of parliamentarians caught out over dual citizenship under S.44 (i), 12 in total, before an exhausted High Court was given a break.

Most recently, questions have arisen over the eligibility of Labor’s candidate in Bennelong, neurosurgeon Brian Owler but these remain dubious at this stage because he is not bound to formally nominate as a candidate with the AEC until an election is called.

Wentworth independent, Kerryn Phelps has also faced questions but there is no prospect of her being referred to the High Court because a) she’s a crossbencher and in part at least controls the fate of the government and b) the government has some Section 44 problems of its own, namely with Minister of Home Affairs, Peter Dutton.

But there are others in the parliament who are under the S.44 gun. My understanding is there are as many as ten MPs, the majority of which sit in the House who could be referred under Section 44 (i), (iv) or (v). They come from both sides of the divide and the crossbenches.

Overall the S.44 concerns have been pushed to one side due to the dire circumstances the government finds itself in.

Nevertheless, without serious amendment, S.44 will continue to cause problems with future parliaments and the resulting furore will accelerate the rolling loss of public confidence in our most important institution.

I am disinclined to support constitutional amendments to suit those who breach them, but S.44 has been and will continue to be used as a political weapon wielded by opportunists.

As it stands S.44 now places not a blanket restriction but a restraint on people who are currently serving in the military and public servants both of whom have a solid understanding of how public administration works.

When used as a political bludgeon, S.44 further deters doctors, nurses, civil engineers, pensioners, military veterans and many people with disabilities from standing as candidates for the federal parliament.

Moreover, when S.44 is taken to its ultimate conclusion, costly by-elections are triggered that almost always return the incumbent.

The prevailing view, especially in these days of increasing numbers of small party and independent parliamentarians, must be that more people should be encouraged to stand for the parliament, not less.

Let’s have a look at S. 44 of the Australian Constitution and how it might be fixed:

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.

Paragraph (ii) relates to convictions for treason of which there have been precisely zero in Australia. An often-misunderstood element of paragraph (ii) is that anyone convicted of an offence that carries a 12 month or longer spell in prison, is disqualified for life. It probably works that way in reality, but the High Court interprets the phrase “under sentence” as such that a person is eligible to sit in the parliament once their sentence has been served.

Convicted murderers in the parliament? It’s possible as things stand but voters are not likely to be as forgiving as the Constitution.

It is paragraphs (i), (iv) and (v) that are the most contentious. They were established as anti-corruption measures, but those provisions were created in a way that may have made sense in 1901 but largely don’t anymore.

For example, the extension of S.44 (v) is that it does not apply to members of the Queen’s Navy or Army (the Constitution was written during the reign of Queen Victoria), but we are less certain about members of the Australian Defence Forces, including reservists.

In 1996, the elected member for Lindsay, Jackie Kelly was referred to the High Court. She had not renounced her New Zealand citizenship and further as a member of the RAAF, she was found to have fallen afoul of paragraphs (i) and (v) of S.44. A by-election resolved the matter with Kelly winning the by-election with an increased margin.

Some years before, when Bob Hawke retired from politics, independent Phil Cleary won the by-election in Hawke’s old seat of Wills. Cleary, too, was found to be ineligible by the High Court under S.44 (iv) as it was deemed he remained an employee of Victoria’s Education Department as a teacher despite having taken an unpaid leave of absence.

To further muddy the waters, Sections 16 and 34 of the Constitution relate to other elements of eligibility, essentially age and status but across the entire Constitution there is no specific requirement for a MP to be an Australian citizen.

So, the troublesome S.44 (i) can easily be replaced by a requirement that any person eligible to sit must be an Australian citizen. In addition, there could be electoral laws created requiring candidates to declare dual citizenship where it arises with penalties for failing to do so. Give voters the information and let them decide.

Let paragraphs (ii) and (iii) stand.

Delete paragraphs (iv) and (v) entirely.

Ideally, these provisions would be better accommodated by the creation of a federal anti-corruption body with powers of a rolling royal commission, charged to distinguish between an inadvertent and a corrupt relationship for profit between parliamentarian and the Commonwealth.

There you go. Problem solved. Let the High Court put their feet up for a while.

Of course, there is the small matter of a referendum and the bleak knowledge that referenda have a poor track record in Australia. But with bipartisan support and the simple provision that an MP must be an Australian citizen, and with voters certain of the knowledge that without change, there will be more of the dreary soul-destroying politicking on S.44, the referendum would have a very good chance of getting up.

This column was published in The Australian on 1 November, 2018