Section 44 of the Constitution of Australia

Section 44 of the Australian Constitution lists the grounds for disqualification on who may become a candidate for election to the Parliament of Australia. It has generally arisen for consideration by the High Court sitting in its capacity as the Court of Disputed Returns.

The Constitution

Section 44 of the Constitution states:

44. 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.^[1]

Almost every part of section 44 has proved difficult to interpret and apply. Its replacement or revision has been frequently considered, particularly by a Constitutional Commission in 1988 and by a parliamentary committee in 1997, but their proposals have not been pursued.^[2][3]

(i) Allegiance to a foreign power

Subsection 44(i) has generally been interpreted by the High Court of Australia as meaning that persons with dual citizenship are not permitted to stand for election and that a person must take "reasonable steps" to renounce their citizenship of the other country.^[4] Its interpretation has been difficult.^[5] There is the preliminary awkwardness that the Constitution itself does not require a member of the Parliament to be an Australian Citizen,^[6][7] although Constitution s 42 does require members to swear an oath or affirmation of allegiance to the monarch; however, Australian citizenship has been made a statutory condition of eligibility for election.^[8]

The Constitutional Commission report of 1988 recommended that s 44(i) be removed, although with the insertion of a new provision requiring Australian citizenship.^[9] In 1997 a committee of the House of Representatives, whose report predicted some of the difficulties that have since arisen, recommended three changes to the Constitution: "delete subsection 44(i); insert a new provision requiring candidates and members of parliament to be Australian citizens; [and] empower parliament to enact legislation determining the grounds of disqualification of members of parliament in relation to foreign allegiance".^[10]

On 8 August 2017 the Senate resolved to refer the matters of Senators Scott Ludlam, Larissa Waters and Matthew Canavan to the High Court as Court of Disputed Returns. The Attorney-General indicated that the Commonwealth will argue, in favour of Cavanan, that s 44(i) requires a personal acknowledgement of the connection.^[11][12] On 9 August the Senate also referred the position of Senator Malcolm Roberts.^[13][14] Both references received all-party support.

Sarina v O'Connor (1946) and Crittenden v Anderson (1950)

Following the 1946 federal election, an unsuccessful candidate for West Sydney, Ronald Grafton Sarina, petitioned the High Court to declare the election of William O'Connor void under s 44(i), claiming that as a Roman Catholic, O'Connor was under an allegiance to a foreign power. In December that year, Sarina's solicitor sought leave to withdraw the petition, which was granted.^[15]

A similar case arose in 1950, with independent candidate Henry William Crittenden petitioning for Gordon Anderson (Kingsford Smith) to be disqualified on the basis of his Catholicism. Justice Fullagar ruled against Crittenden, saying that were his premise to be sustained, it would prevent any Catholic from holding a seat in the Australian parliament. The decisive factor was that to exclude Catholics from the parliament would be to impose a "religious test" for public office, contrary to Constitution s 116. Fullagar J also said that the petition invited analysis of the relations between church and state over centuries, the relationship between Italy and the Papal States, and the sovereignty of the Vatican City State—none of which, in his opinion, was relevant to the election of an Australian member of parliament. The case was dismissed, with Crittenden ordered to pay Anderson's costs.^[16][17]

Nile v Wood and Re Wood (1987)

Robert Wood was elected as a Senator for NSW in 1987. The Call to Australia party's Elaine Nile challenged his election on grounds that included that "His actions against the vessels of a friendly nation indicate allegiance, obedience or adherence to a foreign power".^[18] This related to Wood being fined $120 for paddling a kayak in front of the US warship USS Joseph Strauss in Sydney Harbour.^[19] The High Court, Brennan, Deane and Toohey JJ, dismissed the petition in December 1987 on technical grounds. The brief judgment made a number of observations about subsection 44(i), relevantly including that it required an identified foreign power and an acknowledgement of allegiance.^[18]

It was later discovered that Wood had not been an Australian citizen at the time of his election. The High Court unanimously determined that, as he had not been an Australian citizen, he had not been entitled to be nominated for election as a senator and therefore had never been validly elected. The decision was based on the explicit requirement in the Commonwealth Electoral Act 1918 that a candidate must be an Australian citizen.^[8] The High Court expressly declined to rule on the question of whether being a dual citizen—in Wood's case, of Australia and of the United Kingdom—would also disqualify a candidate from election.^[20]

Free v Kelly (1996)

At the 1996 federal election, the election of Jackie Kelly for the House of Representatives seat of Lindsay was challenged because she was a dual citizen of Australia and New Zealand at the time of her nomination. That part of the challenge wasn't pursued however as Kelly conceded that she was incapable of being chosen as a member of the House of Representatives while serving as an officer of the RAAF.^[21]

Sue v Hill (1999)

At the 1998 federal election, Heather Hill, who held 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,^[22] 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 a British citizen Hill was therefore unable to take up her Senate seat.^[23] As a result, Len Harris, the second One Nation party candidate on the ballot, was elected and took Hill's place in the Senate.

Scott Ludlam and Larissa Waters (2017)

In July 2017, Greens Senator Scott Ludlam resigned after discovering he still retained New Zealand citizenship from his birth in New Zealand.^[24] Ludlam had settled in Australia with his family aged eight, and had previously assumed he lost his New Zealand citizenship when he naturalised as an Australian citizen in his mid-teens.^[25] It is expected that Ludlam will be found to have been ineligible to be elected, requiring the seat to be filled by a recount of the 2016 federal election.^[26]

The revelation prompted Ludlam's fellow co-deputy leader of the Greens, Senator Larissa Waters to similarly discover that she held Canadian citizenship, and to resign four days after Ludlam. Waters was born to Australian parents who were briefly living in Canada, and returned with them to Australia while still a baby. She had previously believed that she was solely an Australian citizen, and that if she had wished to gain Canadian citizenship she would have needed to taken active steps before age 21. However, she discovered she had in fact always held dual citizenship since birth.^[27] Her seat is also likely to be filled by a recount, giving former Democrats leader Andrew Bartlett, who held the second position after Waters on the Greens' 2016 Senate ticket in Queensland, a high chance of returning to the Senate.^[28]

On 8 August 2017 the Senate referred the matters of Ludlam and Waters to the High Court as Court of Disputed Returns.^[11][12]

Matthew Canavan (2017)

On 25 July 2017, Liberal National Party Senator Matthew Canavan resigned from his positions of Minister for Resources and Northern Australia in the Cabinet over doubts as to his eligibility to be a member of the parliament, after discovering that he was considered by the Italian authorities to be a citizen of Italy.^[29]

Canavan's mother had registered him as an Italian resident abroad with the Italian consulate in Brisbane in 2006. Canavan stated he was unaware of this until his mother was prompted to inform him following news of the resignation of two Greens senators holding dual citizenship.^[30] The government has taken the view that he is not in breach of the Constitution as the registration was not made with Canavan's knowledge or consent.^[31]

On 8 August 2017 the Senate referred Canavan's position to the High Court as Court of Disputed Returns. Canavan spoke in support but stated that he would not be voting in the Senate until the High Court decision.^[11][12]

Malcolm Roberts (2017)

Senator Malcolm Roberts was born in India of an Australian mother and a British father. Roberts is an Australian citizen, and in August 2017 documents were revealed by Buzzfeed indicating that Roberts was a British citizen at the age of 19.^[32] Roberts stated that he had only ever been an Australian and that, in case he ever had British citizenship, before the 2016 election he took reasonable steps to renounce it. Doubts have been cast upon his view of the position. On 9 August 2017 the Senate referred his position to the High Court as Court of Disputed Returns.^[13][14] The referral was moved by his party leader Pauline Hanson, with his support.

(ii) Criminal convictions

Nile v Wood (1987)

Another part of Nile's challenge to Wood's election was that Wood had served a term of imprisonment in 1972 and had been convicted of obstructing shipping.^[18] These related to the $120 fine for paddling a kayak in front of the USS Joseph Strauss and being gaoled for one month in 1972 for refusing to be conscripted to fight in the Vietnam War.^[33][19] The observations of the High Court about section 44 of the Constitution included that the disqualification is not simply for the conviction of an offence: the offence must be punishable by imprisonment for one year or more.^[18]

Re Culleton [No 2] (2017)

Rod Culleton was declared elected as a Senator for WA following the 2016 federal election on 2 July. In March 2016, before the election, Culleton had been convicted, in his absence, of larceny. He had the conviction annulled on 8 August, after the election.^[34] He then pleaded guilty but no conviction was recorded.^[35] In the High Court it was argued for Culleton that the annulment retrospectively voided the conviction and that, because he had been convicted in his absence, he had not been liable to any term of imprisonment.

The High Court rejected each of these arguments, holding as to the latter that in section 44(ii) the reference to a possible sentence relates to the seriousness of the offence and not to the liability of a particular convict. It said:

Senator Culleton was a person who had been convicted and was subject to be sentenced for an offence punishable by imprisonment for one year or longer at the date of the 2016 election. That was so, both as a matter of fact and as a matter of law. The subsequent annulment of the conviction had no effect on that state of affairs. It follows from s 44(ii) that Senator Culleton was "incapable of being chosen" as a Senator. In the result, there is a vacancy in the representation of Western Australia in the Senate for the place for which Senator Culleton was returned.^[36]

Three ministers and contempt of court (2017)

Section 44(ii) nearly came into operation in June 2017, when three federal ministers were threatened with prosecution in Victoria for contempt of court.^[37] They had published in social media statements alleging that the Supreme Court of Victoria had been politically biased in handing down sentences for terrorism that the three considered to be much too light, and their statements had been reported on the front page of national newspaper The Australian. The Victorian Court of Appeal was soon to deliver judgment on prosecution appeals against the sentences. It asked the three, as well as staff of The Australian, to attend the court to comment on whether it should recommend that they all be prosecuted for contempt of that court, especially in that their statements could be read as attempting to prejudice the appeals. For each minister, a conviction could have engaged section 44(ii), resulting in their removal from the federal parliament; at that time the government did not have a majority in the Senate and had only a one-seat majority in the House of Representatives, of which all three ministers were members.

While The Australian immediately tendered a full apology, the ministers initially offered only an explanation, but, after criticism from the bench and in other media, they requested the court to accept a full retraction of their statements and an unconditional apology. (The ministers did not attend the court in person, pleading that they were required in parliament.) The court accepted the apologies, the Chief Justice stating that there had been a prima face case for prosecution both of the ministers and of the newspaper, and that the ministers’ contempt had been aggravated by the delay in providing a full retraction of the statements and in making an apology.^{[38][39][40][41]}

(iii) Bankrupt or insolvent

Nile v Wood (1987)

A third part of Nile's challenge to Wood's election was that Wood was insolvent,^[18] with Wood being described as "probably the only Member of Parliament to have been elected while on the dole".^[19] The High Court held that it was not enough to allege that Wood was insolvent; he had to have been adjudged to be an "undischarged insolvent".^[18]

Culleton (2017)

Other proceedings concerning Culleton concerned a creditor's petition in the Federal Court, seeking to have Culleton declared bankrupt. On 23 December 2016 the Federal Court made a sequestration order which had the effect of making Culleton an undischarged bankrupt.^[42] On 11 January the President of the Senate wrote to the Governor of Western Australia, to notify her that Culleton's seat had become vacant due to his having become an undischarged bankrupt on 23 December 2016.^[43] Culleton commenced proceedings in the High Court to challenge the power of the President to declare his seat vacant, however this challenge was rejected by Justice Gageler on 31 January 2017.^[44] The sequestration order and therewith the finding of bankruptcy were confirmed by a full court of the Federal Court on 3 February 2017.^[45]

However, Culleton's bankruptcy ceased to determine his eligibility when, later on the same day but in a separate case, the High Court declared that he had been ineligible for election to the Senate owing to conviction of an offence punishable with a sentence of one year or more, under subsection 44(ii).^[46]

(iv) Office of profit under the Crown

Subsection 44(iv) refers to an "office of profit" in the traditional sense of a position carrying an entitlement to any form of financial benefit, including salary. As with the reference to "pension", the intention is prevent the Executive from corrupting a member by offering such a position.^[47] However, the provision has been interpreted to prevent any individual who is already in state employment from standing for parliament, even if they would have had to resign from that position if elected.

The Constitutional Commission report of 1988 recommended that s 44(iv) be replaced with more specific provisions^[48]; likewise in 1997 a committee of the House of Representatives, which termed s 44(iv) "something of a minefield".^[49]

Sykes v Cleary (1992)

The High Court voided the election of Phil Cleary in a 1992 by-election, holding that he had been acting in an office of profit under the crown. At the time of his election, Cleary had been on leave without pay from his job as a school teacher in the Victorian state system.^[50][51] The effect of this judgement was 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.^[52]

Jeannie Ferris (1996)

During the period between the declaration of her election in March 1996 and taking her seat on 1 July of that year, Jeannie Ferris had been employed by Liberal Party Senator Nick Minchin. It was unclear at the time whether this constituted holding an "office of profit under the Crown" as specified in subsection 44(iv). To avoid the possibility of her election being declared invalid, Ferris resigned from the Senate only to be immediately re-appointed by the Parliament of South Australia to fill the casual vacancy that her resignation had created.^[53]

George Newhouse (2007)

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 subection 44(iv). The basis of the claim was that Newhouse had not resigned from the New South Wales Consumer Disputes Tribunal and so was occupying an "office of profit under the Crown". Liberal frontbencher Andrew Robb claimed that a by-election in Wentworth would be necessary if Newhouse were to win the seat, due to his ineligibility.^[54] The matter never came to a head, however, as Newhouse was comfortably defeated by the incumbent Liberal Party candidate and federal Minister Malcolm Turnbull.

(v) Pecuniary interest in an agreement with the Commonwealth

As with subsection 44(iv), the aim of subsection 44(v) is to prevent corruption of members by the Executive. It is also to avoid a conflict of interest that could lead a member of the Parliament to give priority to their own financial interest over impartial judgement of policy.

Re Webster (1975)

What constituted a "pecuniary interest" did not arise for consideration by the High Court until 1975 when the Senate referred questions concerning the eligibility of Senator James Webster who was a shareholder in and managing director of a company founded by his late grandfather. The company supplied timber and hardware, by public tender, to both the Postmaster-General's Department and the Department of Housing and Construction. Barwick CJ considered the history of the section and its predecessors, describing it as a vestigial part of the constitution. In his view, it had been inserted not to "protect the public against fraudulent conduct of members of the House", but rather to protect the independence of the parliament against influence by the Crown. On this basis Barwick CJ concluded that the interest "must be pecuniary in the sense that through the possibility of financial gain by the existence or the performance of the agreement, that person could conceivably be influenced by the Crown in relation to Parliamentary affairs."^[55]

The decision has been criticised as taking a narrow approach to the construction of the section^[56] that robs it of most of its efficacy, rendering it almost useless as a check upon would-be fraudulent politicians^[57] and offering "little practical protection to the public interest or Parliament's reputation".^[58]

If Webster had been found to have sat while ineligible, he would have been liable to a daily penalty under section 46 of the Constitution,^[59] which could have accumulated to more than $57,200.^[60] One consequence of the question about Webster's eligibility was the passage in 1975 of the Common Informers (Parliamentary Disqualifications) Act which limited any penalty prior to commencing the suit to $200; although, after the suit has commenced, there is a daily penalty of $200.^[61]

Warren Entsch (1999)

The issue arose again in 1999 concerning Warren Entsch and his interest in Cape York Concrete Pty Ltd who had a $175,000 contract to supply concrete for RAAF Scherger.^[62] Kim Beazley, the Leader of the Opposition moved that the Court of Disputed Returns should decide whether Entsch's seat in the House of Representatives had become vacant because he had a pecuniary interest in an agreement with the Commonwealth. The motion was lost and the House passed a resolution declaring that Entsch did not have a pecuniary interest within the meaning of section 44(v).^[63] Whether the House had power to pass the resolution has been questioned.^[64]

Re Day (2017)

On 1 November 2016, Bob Day resigned his seat as a Senator for South Australia, with immediate effect.^[65] Shortly after Day's resignation, the Senate referred the question of whether Day had been disqualified from sitting or being elected as a Senator due to an indirect pecuniary interest in the proceeds of a lease of part of a building in Adelaide which Day indirectly owned, as Day's electorate office. The Attorney-General argued that the reasoning of Barwick CJ in Re Webster was incorrect and that the purpose of the subsection was to protect the parliament from the potential for influence, whether that potential arises from the conduct of the executive or a conflict between the duty of a Parliamentarian and their financial interests.^[66] On 5 April 2017 the High Court held that Re Webster was wrong and should not be followed; its reasoning was based on consideration of the Convention Debates, as permitted since Cole v Whitfield in 1988. The Court held that Day had an "indirect pecuniary interest" in an agreement with the Commonwealth since at least February 2016 and therefore had not been eligible for nomination as a senator in July 2016. Consequently his seat was declared vacant.^[67][68][69]

Exemptions

The office of Ministers of State are one category exempted from disqualification under subsection (iv). This exemption is necessary because Constitution s 64 requires a federal Minister (at least after three months from appointment) to be a senator or a member of the House of Representatives.^[70] The position of ministers assisting, parliamentary secretaries and for ministers without portfolio is problematic.^[71]

The wording of the exemption in relation to the military forces has been described as extremely obscure and generally assumed to exempt persons who are not full-time members of the defence forces. Whether that assumption is correct has been doubted. There is some question as to the position of the RAAF as it can be comfortably read as part of the military forces, but it is harder to include it in the expression "navy or army".^[71] It wasn't thought that active military service during World War I acted to disqualify Senator James O'Loghlin.^[72]

Free v Kelly (1996)

One aspect of the challenge to the election of Jackie Kelly in 1996 was that she was serving as an officer of the RAAF at the time of her nomination on 2 February 1996 prior to her transfer to the RAAF Reserve on 17 February. The majority in Sykes v Cleary had determined that the process of being chosen commences on nomination.^{[50]:at [27]} Kelly subsequently conceded that she was incapable of being chosen because she was a full-time officer of the RAAF at the time of her nomination as a candidate.^{[21]:at [3]} It has been suggested that the Kelly's concession may have been greater than was necessary.^[71] Kelly won the subsequent by-election with an increased margin.^[53]

References

External links

• "Constitution of Australia, Chapter I, Part IV". www.aph.gov.au. 9 July 1900.