Australians (and their Commonwealth politicians and relevant political parties) have just had what might be described as something of a rout of politicians falling foul of section 44 of the Australian Constitution.

Of 226 Commonwealth MPs [including the Senate and House of Representatives] 15, being just under 14% of MPs have, so far, become subject to the operation of the provision.

When the issue came to the fore in 2017, the long term implications of the section were referred to the Joint Standing Committee on Electoral Matters (JSCEM) for consideration and report.

Short History

The Australian Constitution was, of course, drawn in a very different time and world.

It came into effect at a time when section 44’s reference to “foreign power” would have meant a power other than the then British Empire.

“Australian citizenship” as such, did not exist until the mid-20th century, by which time post World War II migration from Europe was making Australia’s population much more broadly based than just “British”.

Subsequent decades saw immigration from countries well beyond Europe, so further broadening the multicultural mix of Australia and so broadening the scope for people to have dual citizenship, some without knowing about it.

There has, until recently, been very little decided law on the operation of section 44, so far as it concerns dual citizenship issues disentitling people from sitting as MPs.

The issue came to the fore in 2017, whether at the behest of a “foreign power”, as some suggested, or not.

JSCEM Comment and Recommendation

JSCEM recently issued its report on the operation of section 44 of the Australian Constitution. Its content seems to be in lego-political-ese and some “politically correct”.

The report includes a number of comments and recommendations. They include (with some comment of mine adjacent):-

• “There is no evidence that our founders intended s. 44 to apply to those seeking to nominate as well as those elected to Parliament”, which could be seen as a studied avoidance of the issue.
• “The rulings by the High Court have also exposed the electoral system to the risk of manipulation, where a successful candidate could have their election challenged on the basis of preference flows from an ineligible candidate”. This is an interesting comment in light of recent overseas reports of “foreign’ interference in elections.
• “It is now apparent that s. 44 is increasingly acting as a barrier to political participation for large sections of the Australian community.”
• “Considering s. 44 in conjunction with recent High Court rulings, it becomes clear that this is more than just a matter of ‘paperwork’. Large sections of the Australian community are disqualified from nominating for election, despite being eligible under s. 34”.
• “s. 44 imposes obligations on potentially half of all Australians which would prevent them from what should be their fundamental right in a democracy–nominating to stand for election”. The terminology used almost suggests prospective candidates just wake up one morning and run off to nominate. If they did, one must wonder what sort of a politician they might be. I can only hope no would-be politician would do that.

Reaction and Comment

From what I see, hear and read, the ‘dual citizenship scandal’ and the related issues of how “disentitled” politicians are retaining benefits until they apply to the High Courts to obtain rulings and the High Court has ruled, have become infamous.

I sense that the general public has moved past the usual indifference to or ignorance of political and Government legal issues to one of suspicion that anything politicians do to improve the situation legislatively is likely to be seen as self-serving for those already in the Parliament Club.

I, personally, can’t see why expecting people to do their homework as to complying with qualification requirements (both positive and negative / sections 34 and 44 respectively) is not something more consistent with the current thinking of the average Australian voter, whose vote would be needed for any success at a referendum. That JSCEM dismissed that option is disappointing.

The text of the report, which I fully acknowledge few Australians will read, and its very recommendation for a referendum to fix things is a bit out of touch with the demonstrated history of Australians being reluctant to amend the Australian Constitution lightly. I can’t see voters warming to a change on issues to do with politicians and how “Government” works or does not work.

I don’t doubt that there are anomalies in the structure of section 44. For instance section 44 would, in its present terms, have disqualified persons who have “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”.

That would have excluded the possibility of electing people like Nelson Mandela (South Africa) or Anwar Ibrahim (Malaysia) from being elected, had they otherwise been eligible to stand for the Australian Parliament [section 34].

The Cure – Practicality & Political Acceptability

I sense that, given the observation and experience of the workings of politicians and the Australian government in the last 10 to 15 years, the Australian electorate, at best, has a jaundiced attitude towards politicians, if not actual distrust.

With section 44 being a matter of the Australian Constitution, it is not open to the Parliament to fix the problem legislatively itself, hence the need for a referendum.

In late 2017, in an attempt to deal with the then recently emerged problem, the Australian Parliament put in place arrangements for a Citizenship Register onto which elected MPs, within 21 days of taking their place in Parliament, must each provide to the Registrar of Members’ Interests a statement including the Member’s declarations as to Australian and foreign citizenship, relevant considerations and evidence. Checking would follow.

With respect to Parliament, I see that as akin to closing the door after the horse has bolted.

To require “disentitled” people to “dob” themselves in after being sworn in, just seems a legal and political nonsense and one which the Australian electorate would see as just that.

We are now in May 2018, six months after the notification arrangements came into use. Yet, we continue to find sitting MPs having to declare themselves as potentially disentitled itself shows how problematic the register of Members option was.

Accordingly and in the absence of a really supported and well argued, discussed and documented rationale for revising section 44 with clear public support for the operation of any proposed change, the prospect of a successful referendum to implement the recommendations of JSCEM at this stage is nil now and, in my view, for some time to come.

It is for that type of reason, I suspect cool heads in Government have decided the better course, at present, is, as was put in Senator the Hon. Mathias Cormann’s Media Release of 17 May 2018, to “improve the existing candidate nomination process for elections“.

With so much “them and us” type nonsense in the electorate, I dare say that prudent step will be much more acceptable to the electorate politically.
Perhaps the following from Senator the Hon. Mathias Cormann’s Media Release of 17 may 2018, is a good common-sense position to have adopted in the present climate:-

“Under those changes, candidates for election to the Australian Parliament would provide information upon nomination to the AEC consistent with the information that was recently requested from all current Members and Senators for inclusion on the Citizenship Register, as well as information on other potential disqualifications under section 44 of the constitution.”

End Game

It will be interesting to see whether, in the longer term, Government maintains a “do your homework” first policy for intending candidates, which is what I would recommend, with some tweaking to the Electoral legislation to give legal support to the new mechanisms.

The idea of a Constitutional referendum on section 44 has to be seen as a much more long term plan. A referendum to change the Australian Constitution requires a lot of thought, particularly as to practicality and political acceptability from the newspaper ‘page 3’ or ‘pub’ tests and, more importantly, the considered vote of the average referendum voter.