Section 44: How a 19th century law is impacting 21st century democracy

Could we be set for another dual citizenship scandal? (Image Source: AAP/Mike Tsikas)

By Josh Brine |@Josh_Brine

In 2017 and 2018, the Australian Parliament was rocked by an eligibility crisis that disqualified more than a dozen Members of Parliament and Senators.

These disqualifications led to a saga of countbacks and by-elections that caused significant disruption to the 45th Parliament.

The parliamentarians were ruled ineligible due to Section 44(i) of the Australian Constitution, which says that any person with citizenship or allegiance to a foreign power, or that is entitled to the rights and privileges of a citizen, is not able to sit in the Federal parliament.

But now, almost two years after the High Court’s ruling on the initial “Citizenship Seven”, confusion surrounding who is eligible under Section 44 is still widespread, with a recent research paper suggesting that more MPs and Senators could be found ineligible.

An article published in the University of Western Australia Law Review in June found there is significant ambiguity in parts of Section 44.

The paper said that as many as 26 MPs and Senators could be disqualified due to their right to abode in the United Kingdom and status as “Commonwealth citizens”.

“There are at least 26 current Parliamentarians who potentially could have the right of abode in the UK due to the evidence of British family history on the parliamentary citizenship register,” the report reads.

“The question of whether the status of Commonwealth right of abode invokes Section 44(i) is consequently a vital one to know and understand for the foreseeable future.”

This is not the only article to point out the possible problems the ambiguous language in Section 44 may cause.

In an article published in the Huffington Post on August 2017, Sydney barrister Robert Angyal said it is possible that nobody is eligible to be elected due to Section 44(i).

Mr Angyal said that as Australian citizens are entitled to live, study and work in New Zealand, they are “entitled to the rights and privileges of a subject of New Zealand”.

“New Zealand law has made every Australian citizen incapable of being elected to, or serving in, the Australian Parliament,” Mr Angyal said.

“It’s not just Barnaby Joyce: it’s everyone!”

Barnaby
Barnaby Joyce was forced to vacate his seat of New England in 2017 due to his New Zealand citizenship (Image Source: AAP)

Associate Professor Matthew Stubbs, the Associate Dean of the Adelaide Law School and Editor in Chief of the Adelaide Law Review, said he believes it is unlikely the High Court would find parliamentarians with a right of abode overseas ineligible.

“It is impossible to rule these things out until the High Court has determined it, but I don’t think that it will be an issue,” Professor Stubbs said.

Prof Stubbs also said that while Commonwealth citizens do possess the right of abode in the UK, they lack other key features full British citizenship would grant them.

However, the issues with Section 44 are not limited to the first subsection and dual citizenship.

The 2017-18 ineligibility crisis led to an inquiry by the Joint Standing Committee on Electoral Matters into issues with Section 44.

The Committee found that Section 44 causes problems that “have significant and detrimental implications for, and impact on, Australia’s democracy”.

One contributor to the Joint Standing Committee’s inquiry was Professor Rick Sarre, the Dean and Head of School for the University of South Australia’s School of Law.

Professor Sarre twice ran for federal office, in 2010 and 2013, as the Labor Party candidate for Sturt, and said he had significant issues with eligibility under Section 44 due to his employment at a public university.

Prof Sarre said Section 44 uses “19th century language” and the interpretations of Section 44 we see today “would never have been anticipated in 1901 when the Constitution was promulgated”.

“The way in which it was framed in 1901 language was especially designed for 19th century conditions,” Prof Sarre said

Prof Stubbs agreed and said Section 44 was “a product of its time” and is now “outdated”.

“It doesn’t suit an Australia which is proudly multicultural and which celebrates diversity of background,” Prof Stubbs said.

“All of the parts of Section 44 are well-intentioned… but there are a couple of fundamental problems from the current perspective.”

The Joint Standing Committee’s inquiry also highlighted issues caused by subsection (iv) of Section 44, which disqualifies anyone who “holds any office of profit under the crown” from being a candidate for federal parliament.

Under this subsection, employees in the public sector (other than members of the military) must resign before beginning any campaign for a federal election.

This leaves interested public servants with a difficult decision between running for federal office and keeping their job.

Prof Sarre resigned from his position at UniSA before he launched both of his campaigns to be the Member for Sturt in the House of Representatives.

While Prof Sarre was able to return to work after failing to win the seat under the Public Service Act 1999, he said he lost five weeks of pay as well as his previously accumulated tenure at the university.

“The office of profit stuff is completely ridiculous,” he said.

Prof Sarre said he received two legal opinions on his eligibility and was given two different pieces of advice, highlighting the confusing and ambiguous nature of the legislation.

“One of them said all I had to do was take leave without pay because I wasn’t then having a pecuniary interest,” Prof Sarre said.

“Then another legal opinion said ‘well actually even if you don’t have a pecuniary interest, because you’re not being paid, you have the office of profit to which you can return—so you need to resign’.”

Similar to these criticisms of Section 44, the Joint Standing Committee also made recommendations on how to reform the law through a referendum.

The Committee formally recommended that both Section 44 and Section 45 be repealed in their entirety.

However, Prof Stubbs said a referendum on the issue is unlikely due to a lack of public demand for change.

“Most Australians don’t tend to regard those sorts of things as significant enough to change the constitution,” Prof Stubbs said.

“The priority, one would have thought, would be on securing some meaningful form of recognition for Aboriginal and Torres Strait Islander people over clearing up the Section 44 mess.”

So, for the foreseeable dual citizens, as well as public servants like Rick Sarre, will continue to be unable to run for Federal Parliament.

“It’s just ridiculous to think that a person in my position as a lecturer is some way conflicted in my duties as a Member of Parliament,” Prof Sarre said.

“Unfortunately, the 19th century language has survived, but the interpretation has not.”

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