There could be no clearer case for an early referendum than the fact that over half of all Australians today have barriers to nomination under s.44. In practice, the Report states, some may never be able to overcome these barriers and nominate. Indeed, 10,779,230 people (46% of the population) were born overseas or have one or more parents who were born overseas – a percentage much the same as may have existed when s.44 was drafted in 1898; and clearly it was not intended then that all such persons should be excluded from the Parliament after Federation.
The Report of the Parliamentary Standing Committee on “The impact of section 44 on Australian Democracy” was released on 17 May and contains a thorough and objective examination of the issue. It advises that the fiasco over section 44 with respect to eligibility for Parliamentary membership following the High Court’s 2017 decision, and those subsequently, can only be resolved by a referendum on its deletion or amendment; but concludes that the preconditions for a successful referendum do not yet exist.
This is the view also of Prime Minister Turnbull, who sees a referendum as yet another disruption to his political calendar rather than an issue having strong merits of its own. It would appear that he and the Labor Party leadership, in spite of the on-going disruptions to the Parliament and the democratic deficit in the existing situation, prefer to allow the problem to linger on, at least for now, and resort to what are described as “mitigation measures” involving the “paperwork” required for those whose eligibility may be challenged – and where the outcome of those challenges may well be subject to the law of third countries and therefore beyond the sovereign reach of Australia.
There could be no clearer case for an early referendum than the fact that over half of all Australians today have barriers to nomination under s.44. In practice, the report states, some may never be able to overcome these barriers and nominate. Indeed, 10,779,230 people (46% of the population) were born overseas or have one or more parents who were born overseas – a percentage much the same as may have existed when s.44 was drafted in 1898; and clearly it was not intended then that all such persons should be excluded from the Parliament after Federation.
Appropriately, the report is entitled “Excluded” for this very good reason. For its part, the Joint Committee stated that its thinking was moved by the same considerations as it had applied to other questions of electoral reform, namely: do they enhance our democracy through clarity, consistency and compliance. They explain that the two solutions proposed, namely: the deletion altogether of section 44 from the Constitution and leaving such matters to Parliamentary legislation; or having the prefatory words “Until the Parliament otherwise provides” included at the start of the section.
The report contains much relevant history relating to the drafting of the Constitution, and s.44 (i) in particular, which might have been given judicial notice when the phrase “foreign power” was interpreted devoid of its historical context. A witness to the Committee’s proceedings, Dr Hal Colebatch, provided a pertinent note to the Committee in relation to this section:
“After four days of drafting, Barton [subsequently the first Federal Prime Minister] presented the convention, on its second-last day, with 400 amendments. He proposed a three-hour break for the delegates to study them, after which they could be put to the vote en bloc.
“Barton assured the convention that there was only one amendment of substance–to s. 44(ii). What he did not say was that s. 44(i) had been completely rewritten, changing it from an active voice (“done any act whereby”) to a passive voice (“is a subject or citizen … or is entitled to”).
No attention was drawn to this change, there was no explanation of it, and there was no time for debate on any clause unless someone objected to it. The constitutional text that proved so significant more than a century later was a last-minute change, drafted in private and accepted out of weariness.”
Also omitted by Barton from the drafting of s.44 (i) – without notice or discussion among those 400 amendments submitted on the last day of the Convention – were the then prefatory words: “Until the Parliament otherwise provides”, a phrase that exists in a number of other clauses of the Constitution. The inclusion of those words now would not in themselves pre-empt the dual-citizenship issue, and would allow the pros and cons of that to be subject to further public discussion and due deliberation before being submitted to the Parliament as legislation.
Regarding the other parts of s.44, in particular the need to clarify its provisions concerning disqualification for holding “any office of profit” or pension under the Crown, these clauses too were seen to require either deletion or redrafting, as their additional aspects raised distinct and problematic issues in themselves.
It is worth noting that, unlike the eligibility question, these other ‘qualifications’ necessary for Parliamentary office are set out in Section 34 which, apart from candidates being of age, includes being a “subject of the Queen whether natural born or naturalised”. Obviously the Queen was not seen then as being of a “foreign power” whereas now her subjects elsewhere are. This clause is however subject to Parliamentary amendment.
In summary the Committee has recommended:
Recommendation 1 – The Committee recommends that the Australian Government prepare a proposed referendum question to either: repeal sections 44 and 45 of the Constitution; or insert into sections 44 and 45 the words: ‘Until the Parliament otherwise provides…’
Recommendation 2 – If the referendum passes, the Committee further recommends that the Australian Government further engages with the Australian community to determine contemporary expectations of standards in order to address all matters of qualification and disqualification for Parliament through legislation under section 34 of the Constitution.
Recommendation 3 – In the event that a referendum does not proceed or does not pass, that the Australian Government consider strategies to mitigate the impact of section 44 as outlined in this report.
Recommendation 4 – the Committee recommends that the Government consider the implications of this report in the context of the upcoming by-elections, in particular the options outlined in Chapter 4.
There were numerous and substantial minority statements and views in the report but the report as a whole must be taken at face value for what it purports to be.
The Committee was not minded to hasten Parliament into a referendum though it did leave a pathway to immediate relief, and that was, as noted, to delete s.44 altogether from the Constitution. A supporting reason given for the latter approach is that all the matters covered in s.44 could as well and more appropriately be left to Parliament. Legislation can be modified or amended more readily than the Constitution, and can respond to changing times and circumstances and be tested more directly in the court of public opinion prior to adoption.
The deletion of s.44 was previously recommended by a Senate Committee in 1981, by the Constitutional Convention in 1988, and by a House Committee in 1997. Support for its deletion, or if it were to be retained by including the words: “Until Parliament otherwise decides”, came also from Professor Tony Blackshield of Macquarie University as follows: “…the concerns that are thought to warrant disqualification are so inherently subject to change that the regulatory structure should be flexible and therefore whatever provisions we make about qualification should be embodied in the Electoral Act rather than the Constitution so that they can be readily modified by the parliament from time to time”.
What is sometimes overlooked in regard to the drafting of s.44 (i) was its larger purpose of entrenching the then existing and strongly held White Australia Policy – another reason why Barton was prepared to allow s.34 to be subject to Parliamentary amendment, but not s.44. The “foreign powers” of concern were Germany, Russia, and France, and more particularly Japan and China (‘yellow peril’!).
The clear and overriding criterion now for Parliamentary eligibility and qualification must first and foremost be Australian citizenship per se.
The case for an early referendum must now be unassailable and, if clearly and factually presented to the electorate, with bi-partisan support, any foreseen difficulties should not be insurmountable. Recalling the heroic endeavours of Alfred Deakin and his compatriots in getting public acceptance of Federation and the Constitution 120 years ago, a referendum to correct an inadvertent anomaly, as contained in s.44, should be a pushover.
While some may take the view that other constitutional issues, such as indigenous recognition and Senate powers over money bills, and republicanism generally, are equally deserving of attention, a situation where over half the population is precluded from Parliamentary office unless they take exceptional measures to qualify – measures that may be out of their hands anyway – engages the fundamentals of the democratic concept and should not be glossed over or put off any longer. It is up to Parliament and the major political parties to do the right thing for all its citizens now.
Andrew Farran is a former diplomat, academic lawyer (international and constitutional law) and trade consultant. He has long advocated, since 1975, constitutional reform.