Section 44 of the Australian Constitution

From Wikipedia, the free encyclopedia

Section 44 of the Australian Constitution is a section of the Constitution of Australia that deals with restrictions on who may become a candidate for election to the Parliament of Australia. Most significantly, section 44(i) asserts that any person "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" is not eligible to stand for parliament. This has generally been interpreted as meaning that persons with dual citizenship are not permitted to stand[1].

Contents

[edit] Applications of the Section

[edit] Sykes v Cleary

In this judgement, the High Court voided the election of Phil Cleary in a 1992 by-election, contending that he had been acting in an office for profit under the crown. At the time of his election, Cleary had been on leave without pay from his job as a teacher in the Victorian state system[2]. The precedent set by this judgement held that public servants had to resign from the public service before nominating. In the wake of this decision, the Commonwealth Public Service made provisions for public servants to be automatically re-engaged should they resign to run for office and be unsuccessful[3].

[edit] Sue v Hill

Main article: Sue v Hill

At the 1998 federal election, Heather Hill, a woman with dual British-Australian citizenship was elected to the Australian Senate as a senator for Queensland. Henry Sue, a voter from Queensland, appealed to the High Court of Australia, sitting in its capacity as the Court of Disputed Returns. Chief Justice Murray Gleeson ruled that the United Kingdom qualified as a "foreign power" under section 44(i), and as Hill was a British citizen was therefore unable to take up her Senate seat[4]. As a result, Len Harris, the second One Nation party candidate on the ballot was elected in Hill's place, and took Hill's place in the Senate.

[edit] Jeannie Ferris

During the period in between her endorsement as a Liberal Party senator in the 1996 election and taking her seat on July 1 of that year, Jeannie Ferris had been employed by Senator Nick Minchin. It was unclear at the time whether this constituted holding an "office of profit under the Crown" as specified in sub-section iv. To avoid the possibility of her election being declared invalid, Ferris resigned from the Senate only to be immediately re-appointed to fill the casual vacancy she had created by the Parliament of South Australia.

[edit] George Newhouse

At the 2007 federal election, it was claimed by the Liberal Party that George Newhouse, the high-profile Australian Labor Party candidate for the seat of Wentworth, was ineligible to stand for parliament under sub-section v of Section 44. In particular, it was alleged that Newhouse had not resigned from the New South Wales Consumer Disputes Tribunal, and as such was maintaining "an office for profit under the crown". Liberal frontbencher Andrew Robb claimed that a by-election would have been necessary in Wentworth if Newhouse were to win the seat, due to his ineligibilty[5]. The matter never came to a head though, as Newhouse was comfortably defeated by Liberal Party minister Malcolm Turnbull.

[edit] External links

[edit] References

  1. ^ O'Brien, Sarah, Dual citizenship, foreign allegiance and s. 44(i) of the Australian Constitution, Background Papers, no. 29, Parliamentary Library, 1992
  2. ^ Australian Electoral Commission - Nominations, Retrieved on December 23, 2007
  3. ^ Requirements for APS employees seeking to contest an election, Australian Public Service Commission, Retrieved on December 23, 2007
  4. ^ Kalokerinos, John, Who May Sit? An Examination of the Parliamentary Disqualification Provisions of the Commonwealth Constitution, p9, Parliament of Australia, June 2001
  5. ^ Newhouse's election candidacy uncertain, Australian Broadcasting Corporation, 2007, retrieved December 23, 2007