The Section 44 soap opera: why more MPs could be in danger of being forced out


H. K. Colebatch, UNSW

One thing we learned from the recent election campaign is that the political crisis over Section 44 of the Constitution has not gone away.

Many candidates in the election had their eligibility to stand for parliament questioned and some were even forced to withdraw from their races.

Despite all the attention given to this matter over the last couple of years, and the various procedures introduced to address it, Section 44 will only continue to be a problem until the parliament steps in to address it.

To do that, we first need to address seven myths about Section 44.

1. Everyone knows their citizenship, they just need to do their paperwork

Section 44 is about more than just citizenship – it covers a variety of restrictions on who can serve in parliament.

For instance, a GP who bulk-bills a patient could be considered to have a “pecuniary interest in an agreement with the Commonwealth.” And a postman or a nurse in a public hospital could be deemed to hold “an office of profit under the Crown.”

On citizenship, the section doesn’t just disqualify dual citizens, it also bars those “entitled” to citizenship elsewhere (even if they haven’t applied for it) and those “entitled to the rights and privileges” of citizenship (basically, the “right of abode”, or being entitled to enter a country and live there).

Such entitlements are not easy to discover and almost impossible to remove, because they’re embedded in foreign legislation.




Read more:
How the Australian Constitution, and its custodians, ended up so wrong on dual citizenship


2. It doesn’t affect many people

On the contrary, the parliamentary committee investigating the matter estimated half the adult Australian population, or more, could be disqualified by law or impeded in practice from standing for parliament.

In the recent election, we saw one potential candidate withdraw because she was an Australia Post employee and another because she was entitled under Indian law to some privileges of Indian citizenship.

As a result, the Australian parliament becomes even less representative of the Australian people.

3. The constitution framers knew what they were doing

The original text agreed to at the constitutional convention in 1898 simply said anyone who had acquired foreign citizenship by their own act was disqualified from standing for parliament.

The text that eventually became Section 44 was inserted surreptitiously by one of the key architects of the constitution (and Australia’s first prime minister), Edmund Barton, as a drafting amendment. He introduced 400 amendments on the second-to-last day of the convention, but made no mention of this change, and expressly denied there had been any changes to Section 44 apart from a minor one to another subsection.




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Could Section 44 exclude Tony Abbott and Barnaby Joyce from parliament?


4. The High Court has sorted it out

Far from it. Very few cases challenging Section 44 have made it that far, partly because the court has done everything possible to fend them off, including trashing the constitutional provision giving citizens the right to challenge the eligibility of parliamentarians. Politicians have also refused to refer cases to the court unless it’s advantageous to their party.

And when the court has heard a case, it has construed its task so narrowly as to give little guidance to future action on the section. In particular, it has said nothing about the disqualification of those MPs “entitled to the rights and privileges of citizenship” in other countries.

In fact, when Senator Matthew Canavan’s eligibility was challenged because Italian laws had changed to permit citizenship to descendents of native Italians, the High Court noted that the law was fairly generous, but one had to apply. Canavan hadn’t applied, therefore couldn’t be an Italian citizen.

But if he had applied and then received Italian citizenship because he was eligible (as his brother had done), he would have been disqualified by Section 44.

This was all too much for the court to sort out. As a result, it offered no clarity on the large number of MPs whose eligibility hangs on what sorts of “entitlement” would disqualify them.

Senator Matthew Canavan was not disqualified after the High Court ruled his Italian citizenship was ‘potential,’ not actual.
Mick Tsikas/AAP

5. But there are administrative checks now, too

Well, yes, but nobody does anything about them. In 2017, all MPs were asked to fill out a form documenting their ancestry and citizenship, and the responses were then logged in a citizenship register. This showed some 15-20 MPs were entitled to foreign citizenship and a total of 59 had the “right of abode” in the UK, which the High Court has decided is the key to the “right and privilege” of citizenship.

But no action was taken on any of these cases. The register appears as a matter of record only.




Read more:
Enough is enough on section 44: it’s time for reform


Similarly, although the Australian Electoral Commission is now requiring candidates to complete a similar form, it does not take action against those who refuse to submit it, or leave sections blank. One candidate was referred to the police, but this was clearly a pointless face-saving exercise.

6. We want our MPs to be unequivocally Australian

Having foreign ancestry does not make you un-Australian. Section 44 does nothing to establish the strength of identity or loyalty – it simply prevents an undefined, but potentially very large, slice of the population from standing for parliament.

One case illustrates the ludicrous reach of the present wording.

After Lithuania regained its independence in 1990, it passed a citizenship law that gave people born outside the country to Lithuanian parents the right to citizenship. In 2016, this provision was expanded to cover those with Lithuanian grandparents. As a result, Senator Doug Cameron, whose Scottish burr we are used to hearing on news broadcasts, became eligible for Lithuanian citizenship.

While Cameron could (and did) renounce his British citizenship to qualify for election to the Australian parliament, he cannot renounce his entitlement to Lithuanian citizenship. And while some people have very strong views about Cameron, I have never heard it suggested he was working to a Lithuanian agenda rather than an Australian one.

Senator Doug Cameron was born in Scotland, but his grandparents are from Lithuania – a fact he had to disclose on the new citizenship register.
Mick Tsikas/AAP

7. It’s too hard to change the Constitution

The same thing was said about amending the Marriage Act to permit same-sex couples to marry. The public recognises there’s a problem with Section 44 and it expects the politicians to fix it.

The best shot came with the Joint Standing Committee on Electoral Matters, which recommended adding the words “until the parliament otherwise provides” to Section 44. This would not change the law, just where the law is made.

Instead of disqualifications being defined by the laws in foreign countries, as the High Court has interpreted Section 44, they could be determined by the Australian parliament. This is how qualifications of senators and members are currently decided. It’s also how women got the vote in 1902.

If this proposal was strongly supported by all the parties and clearly explained to the electorate, it would likely pass in the next election.

So where does this leave us?

It all comes down to leadership. Up to now, both the Coalition and Labor have been primarily motivated by partisan advantage: how can we use Section 44 to score a political point?

The Joint Standing Committee showed that with a willingness to collaborate, there is a path forward to solving the problem. The best we can hope for is that after the trauma of the last few years, and the evidence of the continuing decline in support for the main parties, political leaders will see that acting constructively on Section 44 might actually be in the best interests of both parties.The Conversation

H. K. Colebatch, Visiting Professorial Fellow, UNSW

This article is republished from The Conversation under a Creative Commons license. Read the original article.

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Solicitor-General’s advice on Dutton’s eligibility to come before Friday Liberal vote


Michelle Grattan, University of Canberra

Prime Minister Malcolm Turnbull will invite a leadership “spill” motion at midday Friday, once a majority of Liberals formally ask for a party meeting.

He will not contest the subsequent ballot if – as anticipated – the spill is carried, Turnbull announced to a lunchtime Thursday news conference.

Before the meeting, the Solicitor-General on Friday will provide an opinion on the constitutional eligibility to sit in parliament of challenger Peter Dutton.

Early Thursday afternoon, the final signatures for the party meeting request were being gathered.

The delay and the early provision of the Solicitor-General’s advice give Treasurer Scott Morrison extra opportunity to build support for his own bid for the leadership as an alternative to Dutton.

After a morning of chaos and multiple ministerial resignations, including that of Senate leader Mathias Cormann, Turnbull told his news conference that if he is ousted he will quit parliament – increasing the prospect of an early election.

He said he had “made it very clear that I believe former prime ministers are best out of the parliament”.

The government has a one seat of majority and his seat of Wentworth, although it has a strong margin, would be vulnerable in a byelection because Turnbull is personally very popular there. A byelection would not be needed if there were an early election.

Turnbull said that assuming the spill was carried, the new prime minister would “have to obviously satisfy the Governor-General that they can command a majority on the floor of the House of Representatives.

“In the case of Mr Dutton, I think he’ll have to establish that he is eligible to sit in the Parliament.”

Turnbull delivered a swingeing attack on those who have undermined him.

“A minority in the party room, supported by others outside the parliament, have sought to bully, intimidate others into making this change of leadership that they’re seeking.

“It’s been described by many people, including those who feel they cannot resist it as a form of madness,” he said.

“It is remarkable we’re at this point, where only a month ago we were [in the public polling] just little bit behind Labor and in our own polls a little bit ahead – but in any view thoroughly competitive.”

Turnbull has been under consistent assault not only from Tony Abbott and other Liberal critics over a range of issues, especially energy policy and immigration, but also from commentators in the Newscorp media, especially on Sky, and from shock jocks on 2GB.

Turnbull said that what was happening was “a very deliberate effort to pull the Liberal party further to the right.”

Stressing how vital it was to resolve the issue of Dutton’s eligibility, he said: “This is a very, very significant point. As we all know, section 44 has been a companion of this 45th parliament.

“I cannot underline too much how important it is that anyone who seeks to be prime minister of Australia is eligible to be a member of parliament – because a minister, let alone a prime minister, who is not eligible to sit in the House is not capable of validly being a minister or exercising any of the powers of a minister.”

Legal experts suggest Dutton could be ineligible under the constitution’s section 44 provision on pecuniary interests. This says a person is incapable of sitting if they have “any direct or indirect pecuniary interest in any agreement with the Public Service of the Commonwealth”.

Dutton through a family trust has an interest in child care centres that receive Commonwealth funding. The key question is whether this involves an agreement with the public service.

Dutton’s legal advice is that he has no constitutional problem, and on Thursday he issued updated legal advice.

The government shut down the House of Representatives but does not command the numbers in the Senate so had to endure question time with senior ministers who had resigned on the backbench.

3:15pm

UPDATE: JULIE BISHOP JOINS THE RACE

Liberal deputy and Foreign Minister Julie Bishop will throw her hat into the leadership ring.

Bishop, from Western Australia, has been deputy Liberal leader since 2007 under multiple leaders. She is a moderate, rates well in the opinion polls, and has a high profile internationally as well as locally. She is in much demand from backbenchers to visit their seats and is a good fund raiser.

But she will go into the ballot with the disadvantage of having made many enemies in a long political history.

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The Conversation

Her entry into the field complicates the situation and makes the outcome even less certain.

Michelle Grattan, Professorial Fellow, University of Canberra

This article was originally published on The Conversation. Read the original article.

ISRAEL: MESSIANIC JEW WINS SUPREME COURT BATTLE


Bakery owner had lost her Jewish dietary law certificate because of her faith.

JERUSALEM , July 15 (Compass Direct News) – For three long years a Jewish believer in Christ struggled to keep her bakery business alive after the Chief Rabbinate of Israel, the country’s highest religious governing body, annulled her kashrut (Jewish dietary law) certificate because of her faith.

Pnina Conforti, 51, finally gave a sigh of relief when the Israeli Supreme Court on June 29 ruled that her belief in Jesus Christ was unrelated to her eligibility for a kashrut certificate. While bakeries and restaurants in Israel are not required to obtain such a permit, the loss of one often slows the flow of customers who observe Jewish dietary laws and eventually can destroy a business.

Conforti said that the last three years were very difficult for her and her family, as she lost nearly 70 percent of her customers.

“We barely survived, but now it’s all behind us,” she said. “Apparently, many people supported us, and were happy with the verdict. Enough is enough.”

Conforti, who describes herself as a Messianic Jew, had built her Pnina Pie bakeries in Gan Yavne and Ashdod from scratch. She said her nightmare began in 2002 with an article about her in “Kivun,” a magazine for Messianic Jews in Israel.

“Soon after, the people of the Rabbinate summoned me and told me that my kashrut certificate was annulled because I do not profess Judaism,” she said.

Food prepared in accordance with kashrut guidelines is termed kosher, from the Hebrew kasher, or “fit,” and includes prohibition of cooking and consuming meat and diary products together, keeping different sets of dishes for those products, and slaughtering animals according to certain rules. News of the faith of the owner of the Pnina Pie bakery in Gan Yavne spread quickly, soon reaching extremist organizations such as Yad le’Achim, a sometimes violent Orthodox Jewish group.

“They spread around a pamphlet with my photo, warning people away from acquiring products from my business,” Conforti said. “One such a pamphlet was hung in a synagogue. However, I refused to surrender to them and continued working as usual.”

Four years later, in 2006, Conforti decided to open another patisserie in Ashdod, near her original shop in Gan Yavne, in southern Israel. The business flourished, but success didn’t last long.

“A customer of mine, an Orthodox Jew from Ashdod, visited his friends and relatives in Gan Yavne,” she said. “There in the synagogue he came across a pamphlet from 2002 with my photo on it. In addition to boycott calls, I was also described as a missionary. My customer confronted me, and I honestly told him I was a believer.”

Soon thereafter the Rabbinate of Ashdod withdrew the kashrut certificate from her shop there, she said.

“Pamphlets in Hebrew, English and French about me begun circulating around the town,” Conforti said. “They even printed some in Russian, since they saw that the customers of Russian origin continue to arrive.”

The withdrawal of the certificate from the shop in Ashdod in 2006 was a serious blow to her business. Conforti decided to take action, and her lawyer appealed to Israel’s Supreme Court. Judges Yoram Denziger, Salim Jubran and Eliezer Rivlin ruled that the Chief Rabbinate of Israel overstepped its authority.

“The Kashrut Law states clearly that only legal deliberations directly related to what makes the food kosher are relevant, not wider concerns unrelated to food preparation,” the panel of judges wrote.

In response, the Chief Rabbinate accused the judges of meddling in religious affairs.

Soon after she petitioned the Supreme Court, Conforti said, the Chief Rabbinate had offered her a deal by which it would issue her business a kashrut certificate but with certain restrictions, such as handing the keys of the bakery to a kashrut supervisor at night. Conforti declined.

Tzvi Sedan, editor-in-chief of “Kivun,” said the Supreme Court verdict was paramount.

“It’s important not only for Messianic Jews, but also for every other business owner who has to suffer from the arbitrariness of the Rabbinate,” Sedan said. “But I still want to see this decision implemented fully in reality.”

At press time Conforti still hadn’t received the certificate. She was waiting for a team of inspectors from the Rabbinate to inspect the business prior to issuing her the certificate.

A Jew of Yemenite origin, Conforti said she was raised in religious family but came to trust in Christ following her encounter with a Christian family during a visit to the United States.

“There I found Christ and embraced him as my personal Savior,” she said. “I do not engage in [evangelistic] activity, but if someone starts a conversation about my faith, I will speak openly about it.”

Report from Compass Direct News