A government-dominated parliamentary committee has recommended the voting system for federal elections should become optional preferential and pre-polling should be reduced from three to two weeks.
The Joint Standing Committee on Electoral Matters in its report on the 2019 election also urges ID, such as a driver’s licence or Medicare card, be required for voters, with special arrangements for certain disadvantaged people.
In a set of radical proposals the report says a referendum should be considered to break the constitutional nexus between the numbers in the Senate and House of Representatives.
The government should consider asking the committee to inquire into the size of the lower house, given the growing size and demands of electorates, the report says.
It should also consider having the committee examine extending the parliamentary term to a non-fixed four years, with eight years for senators.
The report suggests looking at the viability of replacing by-elections with alternative methods of selecting the new MP, and declaring a seat “vacant when the sitting MP resigns from or leaves the party under which they were elected”.
In his forward to the report, Queensland Liberal National Party senator James McGrath says replacing compulsory preferential voting with optional preferential would maximise voter choice.
Prepolling time should be reduced to a maximum of two weeks and those “who choose to vote early should be required to explain why they are unable to attend on the day rather than it being a matter of convenience,” he writes.
Labor put in a dissenting report opposing a number of recommendations.
The shadow special minister of state, Don Farrell, accused the government of launching “an outrageous authoritarian-style assault on Australian democracy”.
Through its control of the committee, “the government is proposing drastic measures designed to silence its critics, suppress the vote and stop workers and grass-roots campaigners from participating in our democracy,” Farrell said in a statement.
He said moving to optional preferential voting would undermine the compulsory voting system, while voter ID laws would disenfranchise vulnerable citizens, including homeless people and many indigenous Australians.
Abolishing by-elections and allowing the retiring member’s party to choose their replacement would erode democratic rights, Farrell said.
While Australians were distracted last week by Melbourne’s lockdown ending and the final days of the Queensland and United States elections, both major parties joined forces in federal parliament to weaken political donations laws.
This will make it easier for federal politicians to accept secret donations from property developers.
What’s the backstory?
In 2019, the High Court upheld Queensland laws banning property developers from making donations to political parties. The ban was introduced by the Palaszczuk government after a recommendation by the state’s Crime and Corruption Commission.
The Queensland ban applies to donations made to state and local political campaigns as well as general donations to political parties. A general donation might be used for federal, state or local political purposes or for the costs of running a party.
At the same time, the High Court also struck down a 2018 federal law that said property developers could ignore state laws banning them from making general donations to political parties. (Yes — federal parliament really did pass a law overriding state anti-corruptionpowers!). The High Court said federal parliament has no power to regulate political donations that merely “might be” used for federal campaigns.
Property developers are also banned from making political donations in New South Wales and the ACT.
Allowing secret donations from dodgy donors
The legislation passed last week overrides state bans on property developer donations in two ways.
First, the legislation introduces a new provision to replace the 2018 federal law struck down by the High Court. This new provision allows property developers (and others banned from making donations under state laws) to ignore state laws banning them from making political donation where the donation is “for federal purposes”.
Second, the legislation allows property developers and political parties to ignore state laws requiring that donations be disclosed. In NSW and Queensland, donations of $1,000 or more need to be disclosed. Under the new federal law, only donations of $14,300 or more made by property developers “for federal purposes” need to be disclosed.
The explanation given for the new laws is that state laws shouldn’t apply to federal donations.
According to Finance Minister Mathias Cormann, the new laws “better clarify” the interaction between federal and state electoral laws.
The revised provisions ensure that federal law only applies exclusively to donations that are expressly for federal purposes, while fully respecting the application of state laws to amounts used for state purposes.
Labor’s Don Farrell, who is shadow Special Minister of State, told the Senate,
it’s not Labor’s intention in any way to weaken any of those provisions already in place in the states, but the Commonwealth parliament should be able to make laws with respect to Commonwealth elections, and those laws should not be overridden by the states.
Why this is bad for integrity
If you are a property developer wanting to curry favour with the NSW Labor Party or the Queensland Liberal National Party, you are now allowed to make a donation of $14,299 and no one will ever know. All you need to do is tell the party the money is “for federal purposes”.
While the law requires parties to keep money donated “for federal purposes” in separate bank accounts, a donation “for federal purposes” frees up money from other, general donations to be used for state purposes.
this bill locks in the status quo when it comes to the current political donations culture at the federal level.
Meanwhile, Tasmanian lower house MP Andrew Wilkie described the law as allowing “brazen money laundering”. Senator Jacqui Lambie said the law was “a doozy” of a way “to hide big donor money from the voters” and “the latest in a long line of betrayals of the public’s trust”.
Federal integrity laws are too weak
Federal parliament had an opportunity to introduce better federal political transparency measures. They could have lowered the federal donations disclosure threshold so the public knows where federal politicians get their money. They could have introduced real-time reporting of donations so the public doesn’t have to wait until after each election to find out the identities of the biggest donors.
Labor has introduced bills on both these measures. Instead of dealing with those, both major parties took the time and effort to override state anti-corruption laws.
To add icing on top, the Morrison government has now released a draft bill for a federal integrity commission with proposed powers so much weaker than existing state anti-corruption commissions that a former judge called it a “feather duster”.
The Morrison government wants sweeping new powers to cancel international arrangements by universities, councils and state governments.
After announcing its intentions in August, it introduced a bill to parliament last week.
The government argues the bill is needed to “ensure a consistent and strategic approach to Australia’s international engagement”. Prime Minister Scott Morrison has said Australia must “speak with one voice”.
But the bill should not pass parliament.
Not only has the government failed to identify any specific problem with the status quo, the bill rests on a fundamental misunderstanding of the nature of modern diplomacy.
For decades, Australia has had international agreements beyond the federal level. A huge number of actors interact internationally and affect how Australia is viewed. This can’t be exclusively managed from Canberra.
The proposed legislation mistakenly rests on the idea that speaking with “one voice” in foreign policy is a positive thing, when the modern idea of diplomacy emphasises broad engagement.
Australia benefits when multiple actors across society engage internationally to balance the ups and downs in official relations. As American author Parag Khanna memorably described it, “diplomacy is no longer the stiff waltz of elites but the jazzy dance of the masses”.
This bill overreaches
The legislation badly overreaches by seeking to regulate activities across education, culture, research and trade.
Including universities is also a step too far. It was originally thought the legislation would only cover arrangements between universities and foreign agencies, but it also covers universities that do not have institutional autonomy, which is a large number of foreign universities. This vastly increases the scope of regulation.
Meanwhile, the test for vetoing a foreign arrangement is far too wide. The foreign minister can declare an arrangement invalid if it is likely to adversely affect Australia’s foreign relations (undefined) or be inconsistent with Australia’s foreign policy (defined as whatever the minister says it is, whether or not written or publicly available). “Arrangements” include anything in writing, whether or not legally binding.
We don’t actually need this bill
In sounding the alarm, the government has failed to pinpoint a real problem.
For example, there is zero evidence that a non-binding, symbolic memorandum of understanding between Victoria and China on to the Belt and Road Initiative has hampered the Commonwealth in pursuing Australia’s foreign policy.
Former Nationals leader Barnaby Joyce has condemned the slimmed down, part-virtual COVID parliament as living “in a half life” and compromising democratic rights.
“No disease in 2020 should interfere in your parliamentary democratic rights. Parliament in a half life is not a parliament, it is merely a rather large building, kind of a new age palace in Canberra.”
Under rules agreed for the current sitting fortnight MPs can participate in parliament remotely and ask questions and speak but cannot vote.
The prohibition on remote voting reflects not just technological challenges but a desire to preserve the integrity of votes, represented by the tradition of the chamber doors being locked when votes are counted.
There are some differences in rules between the House of Representatives and the Senate – senators can move amendments remotely.
The House numbers in the chamber at any one time are limited not just to comply with social distancing but to avoid ACT health rules that would apply if the number was above 100. The parties have rosters. Numbers are managed to reflect the balances between the parties.
Writing on Facebook, Joyce said he was in Canberra but every second day he did not have a seat in the parliament to do his job.
“This is all very epidemiologically responsible but also a dangerous intrusion into your democratic rights.”
Legislation passed on a majority vote, but if he was “rostered off” on the day of a vote, how did the people in his New England seat have their wishes represented?
“On that day New England is disenfranchised and there is merely the presumption that their wishes are the same as the executive.
“It is difficult to be responsible for something I had no vote on and I don’t want to explain how I didn’t actually support something but … that was my RDO”.
Joyce said to bring on a private member’s bill required more than half of the actual 151 members of the House, posing a big problem when many members were not there.
“Nothing will be brought on against the wishes of the executive and don’t the ministers in the executive love that.”
He gave the example that the Senate might soon vote to restore the Northern Territory’s two lower house seats (one of which has been abolished due to population loss) but in present circumstances there would be no way to bring the bill on in the House unless the executive agreed.
“Our parliament can’t work on the presumption of the benevolence of the boss being all good. Whether right or wrong it is just too North Korea.”
“I am sure the PM and cabinet are doing the right thing, I don’t see them
as bad people, but if they went off the reservation then there is little or rather vastly less than there should be, to check them.
“This must stop because when the malady is hard to diagnose it is easy to cure, however when it is easy to diagnose – well it is then too late.”
Questioning why MPs could not vote remotely, Joyce said “a person can transfer millions of dollars back and forth in bank accounts but apparently it is too dangerous for a member of parliament to press ‘y’ for yes or ‘n’ for no, check that they have registered on the correct side for how they intend to vote and then press ‘enter’.
“Apparently it is too difficult to declare the empty public gallery, to allow social distancing, as being part of the chamber, so if you are in Canberra, you can vote responsibly.”
It will be the first time MPs have been able to contribute remotely like this during a sitting week. This is a big leap for the parliament.
What will change in the chamber?
Federal parliament is adopting a hybrid model. Many MPs are still expected to attend the chamber in person. But others will be there via secure video link from their electorate office, with strict rules against slogans and novelty items in the background.
Brazil’s parliament – which covers a large geographical area, with more than 500 members in its lower house alone – had already begun using virtual discussion tools to conduct debates among MPs and between MPs and citizens. This is supported by an app, called Infoleg, which provides information on parliamentary business for both citizens and MPs and enables secure online voting.
The response to UK parliament’s decision has been mixed. British Labour MP Chi Onwurah has spoken of the need to be there in person.
Video engagement is not the same as being there face-to-face with a minister. You also lose the spontaneity, because you have to put in questions five days in advance, so you can’t ask a question about something a constituent emailed you about in the morning.
Less booing and jeering during Prime Minister’s Questions, the ability to call Select Committee witnesses from afar through video-link […] MPs from far ends of the UK noted that they’d be able to spend more time in their constituencies if they could contribute remotely, or that they could spend more time on casework if voting times were cut down through online voting.
Almost 1,000 more contributions were made during the interim virtual/chamber phase than during a comparative period at the beginning of the year.
There were also more contributions from female MPs. Women made up a “slightly higher proportion” of those participating in the virtual chamber, up from 31% earlier in the year to 35%.
Scottish National Party MP Kirsty Blackman also noted the remote provisions made it easier for MPs with disabilities to participate.
Technology is key
The big lessons from these experiences are very similar to those facing other workplaces.
That is, the need to be flexible and invest in suitable technology. This includes secure and individually verifiable voting apps – such as Infoleg – political discussion software and reliable, high-quality video conferencing facilities.
Australia’s parliament can do better (it needs to)
Long before COVID-19, researchers have been calling for parliaments to make better use of technology, to be more efficient and enhance the quality of public engagement.
A 2009 parliamentary survey of MPs found most spent between 5% and 10% of their time travelling. It is a common refrain of MPs they would rather spend more time in their electorates than in Canberra.
There is also growing acknowledgement travel and work requirements on our MPs – particularly in such a geographically dispersed country – are unhealthy and unreasonable. Travel time and time away from family has also been identified as a particular barrier to attracting more more female MPs.
Yes, there are challenges when it comes to “going virtual”. But by forcing our parliaments to experiment with new ways of operating, COVID-19 presents a critical opportunity to reimagine how our democratic institutions can work better.
If we embrace this moment with energy and enthusiasm, we can create new spaces for new voices (as well as better spaces for those we already have).
This might sound naïvely optimistic, but we have been here before.
About 40 years ago, someone stood in a dry Canberra paddock and imagined the light-filled, architectural wonder that is the current “new” Parliament House. And how MPs could be inspired by that environment to communicate their ideas with each other and their country.
Now, as we sit in front of our screens, we can begin to see a new parliamentary landscape. It might feel impersonal at first, but it has the potential to make parliament more user-friendly for MPs and citizens alike.
Federal parliament’s Speaker Tony Smith and Senate President Scott Ryan have agreed to chair a proposed bipartisan working group on how parliament can meet safely during the pandemic.
Labor put forward the working group plan after Scott Morrison cancelled the two-week sitting that was due to start August 4.
The group would comprise the leader of the house and manager of opposition business and their Senate counterparts. The ALP suggested including the chief federal and ACT medical officers but Smith and Ryan said they should be called on as needed.
The group would not decide whether the next sitting, scheduled to begin August 24, goes ahead. The government determines the House sittings, and the Senate (where the government is in a minority) is in charge of its own meetings.
Smith and Ryan said in a letter to Labor: “At the outset, we believe the six parliamentarians should receive a joint briefing from the Commonwealth and ACT Chief Medical Officers regarding the discussions to date, and risks that need to be mitigated.
“Following this briefing, we will be in possession of all relevant facts, and in a position to discuss specific options.
“We will call upon the resources of the chamber departments and the Department of Parliamentary Services as necessary to address issues raised.”
The presiding officers pointed out they had previously engaged with the opposition about the operation of parliament during COVID.
The UK Supreme Court’s finding that Boris Johnson’s suspension of parliament (or prorogation) was unlawful has raised the question of whether similar judicial action could be taken to challenge a controversial prorogation in Australia.
There have been several occasions in the past when prorogation has been used in Australia to achieve political aims.
In light of the UK legal challenge to Johnson’s prorogation that impeded parliamentary action prior to the Brexit date of October 31, will similar court challenges to these types of suspensions be more likely in the future? And would Australian courts consider hearing such challenges?
What the UK Supreme Court ruled
The UK case potentially has relevance for Australia because it neatly side-stepped the more contentious question of whether the prime minister’s advice to the Queen could be the subject of judicial review on the ground it was given for an improper purpose.
Instead, the Supreme Court focused on its judicial power to determine the existence and extent of the executive’s “prerogative” powers.
These are the traditional powers of the monarch that have been passed down over centuries rather than being conferred by law. Australian and UK courts have long recognised that it is up to the courts, through applying the common law, to determine the scope of these powers.
In doing so, the UK court looked to fundamental constitutional principles, such as parliamentary sovereignty and responsible government, as imposing limits on the executive’s power to prorogue.
It recognised that parliamentary sovereignty would be undermined if the executive could prevent parliament from exercising its legislative authority for as long as it pleased.
It also expressed concern that responsible government would be undermined and replaced by “unaccountable government” if parliament were prevented by the executive from scrutinising its actions.
The Supreme Court held that advice to the Queen to prorogue parliament, and any decision based upon that advice, will be
unlawful if the prorogation has the effect of frustrating or preventing, without reasonable justification, the ability of parliament to carry out its constitutional functions as a legislature and as the body responsible for the supervision of the executive.
Whether or not the prorogation has this effect is a question of fact which falls well within the jurisdiction of the courts to determine.
‘Reasonable justification’ to suspend parliament
More controversial is the assessment of what is a “reasonable justification” to suspend parliament.
The Supreme Court pointed out that a short period of prorogation for the purpose of ending a session of parliament and starting a new one would not require further justification.
The court would only need to consider additional justification in “unusual circumstances”. In doing so, it would need to be sensitive to the responsibilities and experience of the prime minister.
In this particular case of the prorogation of the UK parliament for five weeks, the court deemed the circumstances to be not only “unusual”, but “exceptional”.
This was because a “fundamental change” in the Constitution of the United Kingdom is to occur on October 31 when the country is due to leave the European Union. In addition, the House of Commons had already demonstrated that it does not support the government on Brexit, and the prorogation would prevent parliament from carrying out its constitutional role for a significant period before that date.
The Supreme Court was also not offered a reasonable justification by the UK government for the length of the prorogation. It was merely told that a new session of parliament was desired so the government’s agenda could be set out in the Queen’s Speech.
Moreover, there was no consideration by the government of how much time was needed to scrutinise and enact legislation prior to the October 31 deadline, or the competing merits of adjourning or proroguing parliament.
The court pointed to the prime minister’s constitutional responsibility to take into account all relevant interests, including those of parliament, when advising the Queen. In an unusually pointed observation, it noted there was “no hint” of Johnson exercising that responsibility.
Based on this evidence, the court ruled it was impossible to conclude there was “any reason, let alone a good reason” to prorogue parliament for five weeks.
This meant that not only was the advice to prorogue parliament unlawful, but also that parliament would be able to continue in session.
Will the UK ruling set a precedent in Australia?
Would the same kind of challenge occur if a government prorogued parliament in Australia?
Proroguing parliament for a short time to ensure it sits to exercise its functions, as was done by the Turnbull Government in 2016, would clearly be acceptable.
Proroguing parliament for a long period would be much more vulnerable to challenge if it prevented parliamentary inquiries from continuing, for example, or delayed the tabling of embarrassing documents.
The government would have to be prepared to provide evidence to the courts showing “reasonable justification” for the period of prorogation, if it were challenged.
Would Australian courts be prepared to follow the UK Supreme Court precedent?
They would certainly give serious consideration to it, as this is the only precedent on the prorogation of parliament in a Westminster-style system of government, and the unanimous judgement of a significant court.
Moreover, the UK court’s reasoning is very similar to existing Australian cases in which courts have ruled that the common law must be interpreted in a manner that is consistent with constitutional principles.
This means that Australian governments should, in the future, be quite careful when proroguing parliament. They will need to ensure they do not do so for unnecessarily long periods of time and to prevent parliament from fulfilling its legislative and scrutiny functions, especially during periods of political controversy.
If their action is challenged in the courts, they will also need to be prepared to provide evidence of a reasonable justification for doing so.
Boris Johnson has secured the prorogation of the British parliament, which means it will be prevented from sitting for much of the crucial period between now and the Brexit date of October 31.
So what options do those opposed to a no-deal Brexit now have in parliament to prevent it?
A cunningly placed and timed prorogation
If a majority of the House of Commons were opposed to a no-deal Brexit, two primary routes are open to it. One would be the enactment of legislation requiring the government to seek a further deferral of the Brexit date until after some circuit-breaking event could be held, such as a new referendum or general election. The other would be a vote of no-confidence in the government and an early general election.
Both would be extremely difficult to achieve within the now very tight parliamentary timeframes – which presumably was the point. This prorogation is cunningly timed and placed. The fact that parliament has not been prorogued for the entire period leading up to the Brexit date makes it harder to argue in the courts that the prorogation is unconstitutional.
The fact that Johnson gave prorogation advice to the queen before a court could decide on whether to issue an injunction to prevent the giving of such advice (with a hearing on the matter having been scheduled for September 6) also potentially stymies the use of the courts to prevent prorogation. This is because the main avenue for legal attack is in relation to the giving of the advice by ministers, rather than the action of the queen in giving effect to that advice. The latter would normally be regarded as “non-justiciable” – outside the appropriate exercise of judicial power.
In addition, slicing up the sitting period with prorogation in the middle, from September 10 to October 13, means it is now likely there is too little time to achieve all the procedural steps necessary to pass legislation or the resolutions necessary to secure a change in government.
This is exacerbated by the fact that the government largely controls the order of proceedings in the House of Commons and prorogation effectively wipes the parliamentary slate clean of any uncompleted action. Any partially completed action would have to start again once parliament resumes.
Confidence, fixed-term parliaments and an election
One alternative that has previously been raised is a vote of no confidence in the government and an early election. The UK has fixed five-year terms for its parliament. But an early election can be held if a two-thirds majority of the House of Commons votes for it, or if there is a vote of no confidence in the government and after 14 days there has been no vote of confidence in the government.
In either case, the Fixed-term Parliaments Act 2011 states that the election is to be held on a day appointed by the queen on the recommendation of the prime minister.
We have been very clear that if there’s a no-confidence vote, [the prime minister] won’t resign. We get to set an election date. We don’t want an election, but if we have to set a date, it’s going to be after 31 October.
What could be done to avoid that outcome?
The House of Commons could instead act to force the resignation of the prime minister, secure the appointment of a caretaker prime minister, bring about an early election and authorise the new prime minister to seek to defer Brexit until after the election was held so the people could make the ultimate decision on Brexit.
The Fixed-term Parliaments Act deals solely with issues of confidence in relation to the holding of an early election. It provides that only a resolution “that this House has no confidence in Her Majesty’s Government” can cause an early election. It does not deal with other expressions of no confidence in the government.
This would have a “massive political effect but [would] not trigger the terms of the Act”.
So if, for example, the house expressed no confidence in Boris Johnson to hold the office of prime minister, he would be forced, by convention, to resign.
In addition to passing a vote of no confidence in a prime minister, the house may pass a “constructive motion of confidence”, which states that it has confidence in someone else to form a government.
This may be a compromise candidate who is trusted by both sides to run a caretaker government, which makes no significant policy decisions or appointments but simply undertakes necessary ordinary business until an election is held.
The formation of a caretaker government is consistent with British parliamentary practice. Winston Churchill formed one and popularised the “caretaker” term in 1945.
When a prime minister resigns, he or she might give advice to the queen as to whom to appoint as his or her successor. But the queen is not bound by this advice, as the outgoing prime minister ceases to be responsible to parliament for it.
Instead, the queen is obliged to appoint as prime minister the person most likely to hold the confidence of the House of Commons. If the House of Commons has declared, by resolution, who this person is, then the queen has clear evidence, so her appointment of that person cannot be questioned.
The next consideration is that a caretaker prime minister is by convention constrained in undertaking significant acts. If parliament wanted the prime minister to renegotiate the Brexit date so the people could decide on Brexit as a key policy in a general election, it would be prudent for a parliamentary resolution to authorise this action.
Finally, in the United Kingdom it has historically been the case that fundamental constitutional change has been put to the people in a general election. An example is the equally divisive debate over Home Rule for Ireland and the limitation of the powers of the House of Lords.
This means the House of Commons would need to pass a formal resolution that “this House has no confidence in Her Majesty’s Government”, referring to the government established by the new prime minister. This would allow an early election to be held.
In addition, to ensure the caretaker government was for the shortest possible time, the house could resolve that the prime minister should set a particular date for that election.
A series of resolutions could achieve this, but it would require a united front from those opposed to a no-deal Brexit and clever parliamentary tactics to achieve it within the very limited sitting time available.
It may prove that prorogation was the masterstroke to prevent this from occurring.
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.
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.
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.
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.
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.
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.
In the wake of comments about the Christchurch massacre, members of the public have raised the question of whether a senator can be expelled from the Senate for making offensive statements.
It is now well known that members of parliament can have their seat vacated in the parliament due to their disqualification under section 44 of the Constitution for reasons including dual citizenship, bankruptcy, holding certain government offices or being convicted of offences punishable by imprisonment for one year or longer.
But there is no ground of disqualification for behaviour that brings a House of Parliament into disrepute. This was something left to the house to deal with by way of expulsion.
Section 49 of the Commonwealth Constitution provides that until the Commonwealth parliament declares the powers, privileges and immunities of its houses, they shall be those the British House of Commons had at the time of federation (1901).
The House of Commons then had, and continues to have, the power to expel its members. The power was rarely exercised, but was most commonly used when a member was found to have committed a criminal offence or contempt of parliament. Because of the application of section 49 of the Constitution, such a power was also initially conferred upon both houses of the Australian parliament.
The House of Representatives exercised that power in 1920 when it expelled a member of the Labor opposition, Hugh Mahon. He had given a speech at a public meeting that criticised the actions of the British in Ireland and expressed support for an Australian republic.
Prime Minister Billy Hughes (whom Mahon had previously voted to expel from the Labor Party over conscription in 1916), moved to expel Mahon from the House of Representatives on November 11 – a dangerous date for dismissals. He accused Mahon of having made “seditious and disloyal utterances” that were “inconsistent with his oath of allegiance”. The opposition objected, arguing that no action should be taken unless Mahon was tried and convicted by the courts. Mahon was expelled by a vote taken on party lines.
In 2016, a private member’s motion was moved to recognise that his expulsion was unjust and a misuse of the power then invested in the house.
The power of the houses to expel members, as granted by section 49, was subject to the Commonwealth parliament declaring what the powers, privileges and immunities of the houses shall be. This occurred with the enactment of the Parliamentary Privileges Act 1987.
It was enacted as a result of an inquiry by a parliamentary committee, which pointed out the potential for this power to be abused and that as a matter of democratic principle, it was up to voters to decide the composition of the parliament. This is reinforced by sections seven and 24 of the Constitution, which say that the houses of parliament are to be “directly chosen by the people”.
As a consequence, the power to expel was removed from the houses. Section 8 of the Parliamentary Privileges Act 1987 says:
A House does not have power to expel a member from membership of a House.
This means that currently neither house of the Commonwealth parliament has the power to expel one of its members.
Could the position be changed?
Just as the parliament had the legislative power to limit the powers and privileges of its houses, it could legislate to amend or repeal section eight so that a house could, in future, expel one of its members, either on any ground or for limited reasons.
Whether or not this is wise remains doubtful. The reasons given by the parliamentary committee for the removal of this power remain strong. The power to expel is vulnerable to misuse when one political party holds a majority in the house. Equally, there is a good democratic argument that such matters should be left to the voters at election time.
However, expulsion is still an option in other Australian parliaments, such as the NSW parliament. It’s used in circumstances where the member is judged guilty of conduct unworthy of a member of parliament and where the continuing service of the member is likely to bring the house into disrepute.
It is commonly the case, though, that a finding of illegality, dishonesty or corruption is first made by a court, a royal commission or the Independent Commission Against Corruption before action to expel is taken. The prospect of expulsion is almost always enough to cause the member to resign without expulsion formally occurring. So, actual cases of expulsion remain extremely rare.
Are there any other remedies to deal with objectionable behaviour?
The houses retain powers to suspend members for offences against the house, such as disorderly conduct. But it is doubtful that a house retains powers of suspension in relation to conduct that does not amount to a breach of standing orders or an “offence against the house”. Suspension may therefore not be available in relation to statements made outside the house that do not affect its proceedings.
Instead, the house may choose to censure such comments by way of a formal motion. Such motions are more commonly moved against ministers in relation to government failings. A censure motion is regarded as a serious form of rebuke, but it does not give rise to any further kind of punishment such as a fine or suspension.
The primary remedy for dealing with unacceptable behaviour remains at the ballot box. This is a pertinent reminder to all voters of the importance of being vigilant in the casting of their vote to ensure the people they elect to high office are worthy of fulfilling it.