OPINION: Section 44 of the Constitution is a problem not just for the current parliament, but for its successors. The section threatens long-term damage to our electoral processes and the stability of future governments.
Disqualification of dual citizens is only one part of section 44. It also excludes any person who holds an “office of profit under the Crown” or a “direct or indirect pecuniary interest in any agreement with the public service of the commonwealth”. These may yet play a larger role in disrupting the membership of parliament.
These additional grounds may be of great scope, especially if the High Court continues its strict line. An office of profit might be a local government mayor, and even small federal contracts could be a pecuniary interest.
Time will tell, as the High Court has been asked to determine these questions in the cases of Steve Martin, Jackie Lambie’s replacement, and Nationals MP David Gillespie. If either is struck out, the hunt will be on for others with a similar background.
A different problem is the inadequate and ineffectual response of our leaders to section 44. The centrepiece is a register containing citizenship and family background information. It is incomplete, failing to extend to some grounds of dual citizenship, and lacks an independent assessment of whether a parliamentarian is at risk. Instead, the information, often of a sensitive family nature, is left in the public domain as a basis for media speculation and political attack.
Under this system, referrals to the High Court are a question of numbers and partisanship. In the House of Representatives, the government can use its majority to shield Coalition MPs of high risk, while referring opposition MPs to the High Court irrespective of the strength of the legal case against them. This sets a dangerous precedent. If Labor wins the next election, there will be no impediment to it using its numbers in the lower house to refer suspect Coalition members to the High Court. It could do so even if such a referral was not warranted, or if it was designed to obscure doubts about its own members. The government’s approach demonstrates the short-term thinking of both major parties. Their focus is on immediate political advantage, rather than solving the larger problem. This is also evident in the failure to grapple with how the section may destabilise the next election.
Section 44 applies to every person who nominates for election, whether or not they are successful. At the 2016 federal election, 1625 people stood for office. Many were ineligible to stand, with few outside the major parties making even the barest inquiries about their citizenship or other grounds of disqualification.
There can be as little as 10 days between the calling of an election and the close of nominations
In 2016, few people were aware of section 44, and so the high number of ineligible candidates did not raise concerns. Things will be different next time. The legitimacy of the poll will be questioned if ballots are contested by dual citizens and other disqualified candidates, especially where their presence affects the outcome.
Unfortunately, there is no easy fix. Our electoral processes do not provide time to vet all candidates. There can be as little as 10 days between the calling of an election and the close of nominations. Instead, the process must begin weeks before the election is called, which will be before many people have decided to run as a candidate.
The vetting of even a single person can be time-consuming and complex. The process requires each candidate to construct a family tree back to their great grandparents that identifies anyone born in or holding the citizenship of another country. Lawyers from Australia and overseas must then assess whether the candidate has received citizenship by descent. The background of the person’s spouse must also be examined to see if citizenship has been conferred by marriage.
Parliament could respond by mandating a much longer period between the calling of an election and the close of nominations. It could also fund an independent agency to assess the eligibility of all candidates. These would introduce a bloated election period and cost millions of dollars.
The better option is to fix the underlying problem. A solution is provided by the Constitution itself. Section 34 sets out the qualifications of members, including that they be at least 21 years of age.
It begins with the words “until the parliament otherwise provides”, meaning that these rules can be changed and updated. Australia should hold a referendum to insert these same words into section 44. This would permit parliament to rewrite the terms of disqualification to put our present problems behind us once and for all.
George Williams is Dean of Law at UNSW.
This article was originally published in The Australian.