I find it difficult to believe that there were people nominating for this election who had not made absolutely certain that they would not fall foul of the disqualification provisions of section 44 of the Constitution. It is even more astounding that the political party they sought to represent had not carried out an exhaustive check of their constitutional bona fides, even if the candidate had little chance of being elected. Accidents can happen.
The disqualification during the last parliament of a small truckload of members of the House of Representatives and of Senators, and the subsequent resignation of a handful of others followed by by-elections for the House, should have been warning enough. And over the past month or so the Australian Electoral Commission did its bit to warn prospective candidates of their need to comply with the rules set out in the Constitution.
But the Commission cannot itself rule candidates in or out, and rightly so. Only the Court of Disputed Returns (the High Court) or the relevant House of the Parliament can do that – and that can only happen after the candidate had been declared elected.
(It is interesting to note, however, that the Commission isn’t entirely powerless. Having received a nomination from Rod Culleton, a former Senator from Western Australia, originally representing One Nation, who was disqualified by the High Court because he was a person who had been convicted and was subject to be sentenced for an offence punishable by imprisonment for one year or longer at the date of the 2016 election (and would also have been ineligible because he was an undischarged bankrupt), the Commission checked the National Personal Insolvency Index and discovered he was still listed as an undischarged bankrupt. It referred his nomination form to the Federal Police to see whether he had made a false declaration. But that is all it could do. Culleton’s name will still appear on the Senate ballot paper in WA. Voters beware.)
Attempts to disqualify elected MPs and Senators for non-compliance with the Constitution have been gathering pace over the past 30 years, but have happened spasmodically since World War II. The main difficulties have arisen over the first sub-section of section 44 that bars a person who ‘is a subject or a citizen of a foreign power’. That provision was written at a time when there was no such thing as Australian citizenship, and ‘foreign’ applied to anyone not a British subject. Britain, and the other countries of the then Empire, are all foreign countries now. Our current citizenship laws embrace dual nationality – while the Constitution forbids it for members of the federal parliament.
In recent years the High Court has effectively ruled that the only dual national that can escape this prohibition is a person who has tried to dispense with foreign citizenship but been prevented by a deliberate legal strategy of the foreign power from doing so.
Other parts of s.44 have also caused problems. In 1975 Chief Justice Barwick rejected an attempt to disqualify Country Party Senator Jim Webster over whether he had a direct or indirect pecuniary interest in an agreement with the Public Service. Barwick’s decision was controversial in at least two ways. First he decided that he would sit alone as the Court of Disputed Returns. Second, he produced an extraordinarily narrow interpretation of the provision. Recently the High Court has been critical of both and has overturned his reasoning.
Politicians on all sides have proposed changes to these Constitutional provisions, beginning with the Senate Standing Committee on Constitutional and Legal Affairs in 1981, including the Constitutional Commission in 1988, and more parliamentary committees in 1997 through till last year. All have suggested replacing or amending major parts of section 44 (and related sections) and or inserting an amendment that would allow Parliament to write new laws governing the qualifications of MPs and Senators.
I confess that until recently my own view has been that people should just accept the rules that are set down, as interpreted by the High Court, and make sure candidates fully comply with them, given the difficulties of changing the Constitution.
But if a government works up the courage to put forward some other constitutional amendments for approval through a referendum it should include one of the simple proposals suggested last year by the Joint Standing Committee on Electoral Matters, which conducted an inquiry into matters relating to section 44 at the request of the then Prime Minister, Malcolm Turnbull.
The Committee recommended 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…’
Either would leave it to the Parliament to make its own rules about qualifications and disqualifications. This would have the very great advantage that the Parliament could change the rules whenever it decides that decisions of the High Court are impractical or otherwise unacceptable.
Dr David Solomon AM is a retired journalist and author. He was an adviser to the 1981 Senate Standing Committee on Constitutional and Legal Affairs on the issue of assistant ministers. He wrote ‘The Political High Court’ in 1999.