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.




Read more:
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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View from The Hill: Section 44 remains a constitutional trip wire that should be addressed


Michelle Grattan, University of Canberra

The fact the Victorian Liberals are having to change candidates in three seats draws attention to an issue that should be properly fixed but won’t be any time soon – the problem of section 44 of the constitution.

The candidates who’ve fallen over were to run in seats where the Liberals don’t have a chance – Wills, Lalor and Cooper (formerly Batman) – so it’s of no particular political importance that they have to be replaced. Another three flag carriers can be rustled up before nominations close.

But we are reminded of how lethal section 44 has been and how, even now, a major party can have trouble ensuring all the relevant checks have been done.

Some 17 members of the last parliament fell victim to the section – 15 in relation to citizenship, in what was a highly disruptive running crisis. This amounted to 13% of the Senate and 4.6% of the House of Representatives. There were seven byelections.

Section 44 disqualifies anyone from being a candidates if he or she

“(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.”

Of the three Liberal candidates in the news two had citizenship issues and one is an Australia Post employee.

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Obviously lessons have been learned and actions taken to avoid the appalling ructions of the last parliament.

The parties are working much harder at checking – although you have to wonder how efficient minor parties like One Nation will be.

Also, as part of the nomination form submitted to the Australian Electoral Commission, candidates must now fill in detailed questions on Section 44 matters. If they have been a citizen of another country they must provide documentation that they have renounced.

A candidate’s details will be published (with provision for redacting some personal details).

But the AEC is not responsible for “vetting” the candidates. Nor should it be. That is not its role. Anyway, it couldn’t be, given the short time frame involved.

A parliamentary inquiry into the impact of section 44 on Australian democracy, headed by Liberal senator Linda Reynolds (now a cabinet minister) concluded in its report last year that: “Large sections of the Australian community are disqualified from nominating for election [….]

“Some of those automatically disqualified from nominating under s. 44 may be able to address the reasons for disqualification by quitting their public sector job or successfully renouncing a foreign citizenship before nomination, but many will never be able to.

“With the changing demographic of our nation, s. 44 will increasingly disenfranchise more and more citizens from nominating”.

The inquiry also pointed to a somewhat esoteric risk. It said there is “a significant, but previously unexamined, aspect to s. 44 and its interpretation by the High Court. This may lead to an avenue to manipulate an election.

“Any otherwise eligible Senators and Members who are elected on preference flows could have their position challenged, if they relied upon the preferences of an ineligible candidate. This has the serious potential to affect the overall result after the election has concluded, at any point during the term of Parliament.”

The inquiry recommended a referendum to repeal the section, or insert the words “until the parliament otherwise provides”.

If it passed, the committee said, the government should engage with the community “to determine contemporary expectations of standards in order to address all matters of qualification and disqualification for parliament through legislation”.

The committee recommended mitigation in the meantime, while the ground was prepared for a referendum, including full disclosure at nomination, which has been introduced.

It’s easy enough to understand why the political parties are reluctant to contemplate going down the referendum path.

Few referendums succeed, not least because they require not just an overall majority, but a win in a majority of states.

Further, a section 44 referendum would likely involve a divisive debate around whether there should be a change from the Australian-only citizenship qualification for standing for parliament.

And there are other referendum priorities – for example to include in the constitution some form of Indigenous recognition.

On the other hand, mitigation can never adequately deal with section 44 hazards. On citizenship, the section means Australians can be hostage to changes in overseas law. Also, people do not always have access to information to put their status beyond doubt, or it may be a difficult and costly process to do so. This may discourage some potential candidates exercising their democratic right.

If there are not any early parliamentary casualties in the coming term, the parties won’t feel any pressure to secure a permanent solution on section 44. Nevertheless it remains a piece of constitutional housekeeping that needs addressing.The Conversation

Michelle Grattan, Professorial Fellow, University of Canberra

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

View from The Hill: Katter waves Section 44 stick in a ‘notice North Queensland’ moment


Michelle Grattan, University of Canberra

On the day independent Kerryn Phelps was officially declared the winner in Wentworth, a shot was fired across Scott Morrison’s bows to remind him of the challenge of managing a now-hung parliament.

It came not from Phelps but from a longstanding crossbencher, the maverick Bob Katter, who holds the north Queensland seat of Kennedy.

Katter is a politician who creates a fuss in search of a reaction. And
what better time than when Morrison is heading north, in his bus, on a
campaign journey through Queensland, making announcements as he goes?

“Don’t think you have my vote,” Katter declared in the headline of Monday’s press release.

He said he would “not rule out” voting to refer Chris Crewther, Liberal member for the Melbourne seat of Dunkley, to the High Court to determine whether section 44 of the constitution catches him. Dunkley is a marginal Liberal seat that becomes notionally marginal Labor at next year’s election, under the redistribution.

Crewther’s issue is a shareholding in a biotech company, Gretals
Australia, that is said to have received a benefit from the
Commonwealth via grants. The now notorious section 44, which has
caught a plethora of federal parliamentarians over citizenship issues,
also says someone shall be incapable of being chosen for or sitting in
parliament if they have “any direct or indirect pecuniary interest in
any agreement with the Public Service of the Commonwealth …”

The eligibility of Home Affairs Minister Peter Dutton has also been
questioned under this provision, in relation to issues around a family
trust.

Katter said he was “considering” his position, declaring he thought the
Crewther situation was “a lot different” from that of Dutton.

But the giveaway was Katter’s segue. “I’m not impressed with the government in their three months in office running around pork barrelling”. In particular, the government was not dealing with North Queensland issues, he said.

“It seems that there is little point in working with a government that has had three months to do something for the north when all they are interested in is pork barrelling to secure votes. Clearly this indicates they have no interest in really helping North Queensland.”

It’s hard to avoid the conclusion that Katter is thinking less about
the Crewther situation and more about what he might extract for North
Queensland. After all, only on Friday he dismissed backing sending either Crewther or Dutton to the High Court, declaring “politics is not about this sort of rubbish.”

Phelps earlier on Monday told the ABC she wanted to get more information on the Crewther and Dutton cases.

On her own position Phelps, a doctor, said that she had “high level legal advice” that she didn’t have a problem in relation to Medicare, because the rebate went to the patient not the practice.

Labor says both Crewther and Dutton should go to the High Court. The
opposition would have to round up the votes of all six crossbenchers
to have the numbers for referrals.

But a referral doesn’t mean the person has to resign while the case is on.

Given the closeness to the election, even if there were a referral
followed by an adverse decision, it would not trigger a byelection.

In any event, Sydney University constitutional expert Anne Twomey doubts Crewther has a problem.

Twomey says that, on what we know, it appears Gretals Australia doesn’t have an agreement with the Commonwealth – any connection appears relatively remote.

“While Gretals may be a participant in an Australian Research Council
linkage grant, it is the University of Melbourne which has the agreement with the Commonwealth and receives the funding, not Gretals,” she says.The Conversation

Michelle Grattan, Professorial Fellow, University of Canberra

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

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


H. K. Colebatch, UNSW

Among the many lessons the recent Liberal leadership spill has taught us is that the problems arising from section 44 of the constitution, which already has quite a hit list, have not gone away, and there may be more to come.

The section deals with disqualifications from parliament. The problems with it have not gone away, but have become part of the political struggle. They are also not only about citizenship, nor are they simply a matter of doing the paperwork.

It is not clear what the disqualification provisions are, or how they are enforced. And, finally, the problem is not going to be resolved if politicians continue to ignore it.

When section 44 issues were first raised, then Prime Minister Malcolm Turnbull tried to use them as a way of attacking his parliamentary opponents. The ALP is now repaying the favour. Both sides have been more interested in using the issue as a weapon than reaching a solution.




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


More than dual citizenship

The original disqualification questions were about holding foreign citizenship. But it is now being asked if the special jobs created for Tony Abbott and Barnaby Joyce breach the “office of profit” provisions, while Peter Dutton’s business dealings have come under scrutiny for a potential s44 breach.

Meanwhile, the question of disqualification on the basis of an entitlement to foreign citizenship, or to its “rights and privileges”, remains unaddressed. If the High Court were to look into the cases of the MPs with such entitlements, and to rule consistently with its earlier decisions, up to a third of the parliament could be disqualified.

But the whole issue is clouded in uncertainty. The section is very badly drafted; partisan conflict has meant that few cases have made it to the High Court and, when they have, the court’s judgments have been, in Jeremy Gans’s words, “too rare, sparse and cryptic for anyone to confidently rule most Australians in or out” of eligibility.

Different judges have reached different conclusions on the same cases. Even those who have agreed with the other judges have done so for different reasons, so no consistent rule can be derived from the case.

Judges are more interested in reaching a decision on the case in front of them than articulating a general rule that can guide future action. So while QCs may make declarations about how the High Court would rule in any case put to them, as the Commonwealth Solicitor-General said on the Dutton case, “it is impossible to predict” how the High Court will rule on a particular case.

The fact that no one is responsible for applying and enforcing these provisions exacerbates the uncertainty. While section 34 on qualifications is amplified by the Electoral Act and administered by the Australian Electoral Commission, there is no comparable authority for determining disqualifications.

The constitution provided three avenues: the ancient right of parliament to determine if members were qualified to sit; some ways in which the High Court could determine disputes as a Court of Disputed Returns; and the possibility of lawsuits by citizens against members whose eligibility was challenged.

This has meant there is no consistent enforcement. The AEC has refused to involve itself in judging disqualifications. The parliamentary power to determine is completely discredited by the partisan motivation of the politicians. The High Court will only hear cases brought within 40 days of the election unless these are referred by parliament. And the first time anyone used the Common Informers Act, the High Court sniffily declared the act was not properly drafted and was in breach of the constitution. The court threw out the case, nullifying the provision specifically inserted in the constitution to give ordinary citizens the right to enforce the disqualification rules through the courts.

Turnbull announced that all MPs would be asked for a declaration that they were not disqualified by reason of holding a foreign citizenship. These declarations were recorded in a citizenship register, but no action was taken as a result. The register appeared to be an empty gesture.

So we have rules on disqualification that are applied only to those who are honest enough to resign or unlucky enough to find a parliamentary majority organised to refer their case to the High Court.

The multiparty parliamentary committee investigating the problem (the third one to do so) concluded (like its predecessors) that section 44 is not fit for purpose. It proposed a constitutional amendment to put the determination of disqualifications back into the hands of parliament. But Turnbull rejected this proposal before the committee had even proposed it.

Where do we go from here?

Probably everyone in Canberra is too shell-shocked right now to think of more than surviving the upcoming election. But, after the election, the best starting point would be the parliamentary committee’s recommendation to put responsibility back into parliamentary hands. This would enable work to begin on how best to deal with the tensions arising from citizenship, public employment, business dealings and so on, and what sort of regulatory structure would be most appropriate.

The question is how to overcome the inertia and partisan opportunism that have impeded the search for a resolution of the problem up to now. The most promising course would be the development of a cross-party advocacy network, building on the work of the Joint Standing Committee on Electoral Matters. It would help if members of the public were to write to or ring their MPs and senators to express their concerns.




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If this sounds too unambitious, those with the energy to do so could organise to challenge, within the 40-day window, the election of all those members and senators who are entitled to another citizenship or to its rights and privileges.

How many were caught in this net would depend on how many of the present representatives were re-elected, but it would probably not be less than 20-25% of the parliament. For them, the exclusion would be permanent, because while a foreign citizenship can be renounced, an entitlement cannot be: it remains in the law of the foreign country, and the High Court recognises foreign law as the determinant of citizenship status.

The possibility of having a quarter of the parliament thrown out in this way might just be enough to induce the parliamentarians to support a move to a better system.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.

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


File 20180829 86120 19kr3ta.jpg?ixlib=rb 1.1
Tony Abbott is now the prime minister’s Special Envoy for Indigenous Affairs, while Barnaby Joyce is Special Envoy for Drought Assistance and Recovery.
AAP/Mick Tsikas

Luke Beck, Monash University

Tony Abbott and Barnaby Joyce have each accepted job offers from new Prime Minister Scott Morrison to serve as his special envoys.

The prime minister’s offers may have been a clever way to keep these two former leaders busy and put their abilities to use. But these jobs may have inadvertently rendered both Abbott and Joyce disqualified from parliament under section 44 of the Constitution. That section disqualifies any MP who accepts a paid job in government that is not a ministerial position.

The special envoy jobs

Tony Abbott is now the prime minister’s Special Envoy for Indigenous Affairs, whereas Barnaby Joyce is Special Envoy for Drought Assistance and Recovery.

Special envoys are not ministerial positions. Neither Abbott nor Joyce is part of the Morrison ministry. Their roles are to work with the relevant ministers and the prime minister to advance policy in these respective areas. The precise details of what they will be doing are not yet clear.




Read more:
Explainer: is Peter Dutton ineligible to sit in parliament?


Section 44 of the Constitution sets out several grounds on which a politician will be disqualified from membership of parliament. Being a dual citizen is only one of them.

Another ground for disqualification is set out in section 44(iv). That provision disqualifies anyone holding an “office of profit under the Crown”, unless the position is that of a minister.

The special envoy roles look suspiciously like offices of profit under the Crown.

What is an office under the Crown?

There is no doubt the special envoys hold offices under the Crown.

In Re Lambie (No 2) from March this year, the High Court decided that Jacquie Lambie’s successor, who was the Mayor of Devonport in Tasmania, was not disqualified under section 44(iv).

The High Court held that a position is under the Crown if hiring or firing decisions are made by the executive government. Mayors are voted in and out by the people, rather than hired and fired by governments.

The prime minister, who is the effective head of the executive government, appointed Abbott and Joyce to their special envoy roles. The prime minister can also sack Abbott and Joyce as special envoys if he wants.

Positions like Speaker of the House of Representatives, Leader of the Opposition, and Chairperson of a Parliamentary Committee are not “under the Crown”. They are parliamentary positions.

The key issue is whether the special envoy positions are “of profit”.

Is the position of special envoy “of profit”?

It has been reported that Abbott and Joyce were offered remuneration for their special envoy roles.

ABC Radio National Presenter Patricia Karvelas tweeted:

Access to staff does not make a position “of profit”. Nor does covering of work expenses. But a salary, however small, definitely makes a position “of profit”.

On the same day, having already accepted the special envoy job, Tony Abbott told 2GB radio host Ray Hadley that he would not be receiving any pay for his role as Special Envoy. Abbott said: “The other thing I want to say, Ray, is that I certainly don’t expect any extra pay”.

Hadley had not asked Abbott about payment. Abbott simply made the comment off his own bat.

This all suggests that Abbott may have been offered remuneration for the special envoy job, but decided to decline that offer.

The High Court has said that to fall foul of section 44(iv) it does not matter whether a person is actually paid. What matters is “the character of the office”.

In the 1992 case of Sykes v Cleary, the High Court held that Philip Cleary, who had won the federal seat of Wills, was disqualified under section 44(iv). Cleary was a teacher who was on leave without pay at the time of the election.

The High Court decided that it doesn’t matter whether a person is actually receiving payment. What matters is whether payment attaches to the position. Cleary held an office of profit under the Crown even though he was not receiving any payment.




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Chief Justice Anthony Mason and Justices John Toohey and Michael McHugh said:

The taking of leave without pay by a person who holds an office of profit under the Crown does not alter the character of the office which he or she holds. The person remains the holder of an office, notwithstanding that he or she is not in receipt of pay during the period of leave.

Logically, the same reasoning applies to an office-holder who waives their right to payment or declines to take a salary. A person is not saved from disqualification because they are not currently receiving payment.

Abbott and Joyce will be disqualified if, and this is the crux of the issue, remuneration was originally part of the special envoy job offers.

It doesn’t matter if Abbott and Joyce never asked for payment. It doesn’t matter that they declined an offer of payment. And it doesn’t matter that they aren’t actually being paid now.

If a non-ministerial position answers the description of an “office of profit under the Crown” then the holder of that position is disqualified.

Could Abbott and Joyce really be disqualified?

A clear answer is needed to the question of whether Abbott and Joyce were offered payment as part of their special envoy roles. Morrison, Abbott or Joyce could each easily answer that question.

If payment was indeed offered as part of the roles, the only way the issue of disqualification could be decided authoritatively is for the House of Representatives, where the government has a slim majority, to refer Abbott and Joyce to the High Court.

It is unlikely the government will refer Abbott and Joyce to the High Court, and quite likely that the opposition will pursue the issue – and also Peter Dutton’s potential section 44 problem – when parliament resumes in September.

The section 44 saga continues.The Conversation

Luke Beck, Associate Professor of Constitutional Law, Monash University

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