Setting the bar too high?

by Dr Ian Holland

Section 44 of the Constitution is well on its way to decimating the ranks of the Australian Senate. I use the word advisedly. In 2017, four representatives have lost their posts with another — a former government Minister looking like he may join them — all owing to a failure to comply with this provision.

It is hard to believe that anyone seriously considers this to be the way we want our parliamentary membership to be determined. Overwhelmingly, the people who have been casualties of section 44 have been passionate believers in contributing to Australian public life, whether through parliamentary representation or other public activities. Vastly different though their individual beliefs may have been, it is not credible to suggest they were any less able to be members of parliament than their elected peers.

Former Senator Bob Day

First to fall was Bob Day. A Family First Senator from South Australia, Day resigned from the Senate in November 2016. Day’s resignation was triggered by the failure of his building company, the Home Australia Group. It appeared he was concerned that he would fall foul of section 44(iii), which does not allow a person who “is an undischarged bankrupt or insolvent” to sit in Parliament. However, his troubles did not end there. In April 2017 the High Court held that he had not been validly elected in the first place. But it was for a different reason: Day, under a complicated arrangement, was indirectly receiving Commonwealth funds through rental payments on a building. This put Day in breach of section 44(v) of the Constitution, which prevents someone from being elected if they have “any direct or indirect pecuniary interest in any agreement with the Public Service of the Commonwealth”.

Former Senator Rod Culleton

Next was Rod Culleton. In January 2017, Culleton was disqualified from holding a seat in the Senate because he too breached section 44(iii). He was declared bankrupt, owing over $200,000 to a company called Balwyn Nominees. For good measure, the next month the High Court found he was also not eligible to have stood for office because of another constitutional provision. Under section 44(ii) he had 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.” It was a minor but complicated situation, explained by Tony Blackshield: “Culleton confronted a tow truck driver who had come to repossess a truck. Initially Culleton removed the ignition key from the tow truck. In the ensuing scuffle the key was lost: the tow truck driver said Culleton had stolen it, and Culleton was charged with larceny.” Culleton didn’t attend court on the day of the hearing, because he was facing court on another matter on the other side of Australia. Because he was convicted in his absence, it meant that he was “subject to be sentenced” at the exact time the election process commenced. The charge was relatively minor. He didn’t serve any jail time, and in fact the conviction he had received was later annulled and when he was finally present to be tried on the charge months later, no conviction was recorded. However, those facts were not relevant, because the Constitution, by using the word “punishable”, refers to the possible sentence, not the actual sentence the person receives; and it refers to the person’s circumstances at the time of the election, not what may happen to them later.

Day and Cullerton’s cases had resulted from the rules around criminal convictions, bankruptcy, and financial conflict of interest. The next cases were the result of section 44(i), which bars from office anyone who “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”. This means that people who are dual citizens, or entitled to dual citizenship, cannot be in the Commonwealth parliament.

People born in any country other than Australia often hold dual citizenship, and for those of us (including myself) who arrived in Australia as young children, it is a status we may be completely unaware of. And so it was that Scott Ludlum, born in New Zealand but who came to Australia when three years old, and Larissa Waters, born in Canada to Australian parents and who has not lived in Canada for a single one of her birthdays, came undone.

Up to this point, the four cases had one thing in common: they all involved members from minor political parties. Several previous cases of members of parliament violating section 44 of the constitution were also from minor parties. They included: Heather Hill from One Nation in 1999, independent MP Phil Cleary in 1992, and Robert Wood from the Nuclear Disarmament Party in 1988, whose disqualification, and unsuccessful attempt to return to the Senate chamber, I recounted in a biography of Wood.

A generation ago in 1996, there had been two high profile instances of Liberal Party members being ineligible under section 44 (though both resigned before the matter was tested in court) — lower house member Jackie Kelly, and Senator Jeannie Ferris. Both returned to Parliament, in Kelly’s case with an increased majority. These probably contributed to the major parties tightening their processes of screening and advising candidates and members, making them less likely to encounter eligibility issues.

The loss for the Greens is extraordinarily significant, with both their deputy leaders gone in the space of a week. I wrote at the time that section 44(i) had triggered the loss of two committed parliamentarians and that it should change, but that these cases were unlikely to cause any movement on the issue, because the parliamentarians in question were from minor parties.

Major party representatives were feeling confident, with the Prime Minister criticising the Greens’ internal processes as showing “incredible sloppiness”.

This complacency lasted merely days. In a new case set to highlight the absurdity of section 44, cabinet minister Matt Canavan announced that he was a dual citizen of Italy, a country on which he had never set foot, and was a citizen only because his mother had completed the paperwork, and for which he was eligible by descent. Canavan himself was Queensland born and raised, where he now lives with a family of his own.

Canavan indicated that he was getting further legal advice, and the news reported that this would go be going to the High Court. It is hard to see what the court can conclude, other than that he is ineligible to be a senator. Clause 44 is both comprehensive and unambiguous.

Not only dual citizens but also even those “entitled” to dual citizenship are ineligible for office.

There is expected to be a discussion about whether a person’s consent is required, with the Attorney-General saying “It is the Government’s preliminary view that because the registration was obtained without Senator Canavan’s knowledge or consent, that he is not in breach of Section 44 of the constitution”.

I think the Attorney-General is being optimistic. It is not clear how to maintain a distinction between Canavan’s case and Larissa Waters, who similarly was a citizen of another country but had not known, and certainly could not be said to have consented to it. The Attorney-General appears to be hoping the court will make a distinction between citizenship that is sought, and citizenship that pre-exists, even if there is no consent in either case. It seems to me that it would be an adventurous court that was willing to entertain this distinction. To quote Greens leader Richard Di Natale, “the advice we received was that ignorance is no excuse”.

All of this is unfortunate and destabilising for the parliament, but it isn’t the key issue. The important question is this: why do we not trust voters to make these decisions about who they want to represent them? Who among us seriously thinks that Larissa Waters or Matt Canavan are unsuitable members of parliament because of where they or their ancestors were born?

Section 44 of the Constitution prevents millions of Australians from standing for parliament unless they deliberately renounce any other citizenship. Around a quarter of all Australians were born in another country. You can regularly hear accented English in parliamentary speeches, made by people who have devoted their lives to Australia. Doug Cameron’s Scottish accent is so strong you sometimes have to concentrate to be clear what he’s saying. Others have a distinctive twang that enriches the voices of children raised in the Australian suburbs, but in households and communities that chose — or were forced — to come here from far away.

There is no evidence that foreign birth or foreign citizenship has any effect on either the desire or ability to serve in Australia’s parliament. However, we now have abundant evidence that it is a barrier to participation in public life.

The reverse is also true. Cursory consideration of the lives of Australia’s most corrupt or disgraced politicians over the last century, shows that their status in respect of citizenship, bankruptcy, or criminal history were useless as predictors of their subsequent fall from grace.

A migrant nation should not have a xenophobic constitution. Parliamentary committees reviewed these provisions of the constitution in 1981 and 1996, and both reached the same conclusion. The Howard government, doubtless made jittery by their recent troubles with Ferris and Kelly, also agreed, but did not make progress toward the necessary changes.

In 1988, as part of marking Australia’s bicentennial, a Constitutional Commission was established to consider whether Australia’s constitution needed to be updated. It also said section 44(i) should change. It likewise saw problems with the provisions that relate to public employment, criminal convictions, and bankruptcy. It recommended a major overhaul of the provisions around seeking and holding parliamentary office.

It is well known that constitutional change in Australia is difficult. It requires a referendum and majority support in a majority of states. Since federation, of 44 referenda, considered at 19 ballots, only 8 have passed. However, as Emeritus Professor Cheryl Saunders explained, change is possible when there is leadership and sensible community debate about the issues.

We have a great opportunity now. Not only have the problems of section 44 been laid bare in a very public way, but also the opposition leader is calling for fixed four-year parliamentary terms, a reform that would also require a referendum. The prime minister did not reject the possibility of four-year terms, and bipartisanship is essential to changes to our political institutions.

It is time for a public conversation that leads to a referendum to overhaul some of these constitutional provisions. It is hard to credit that there would be resistance to simpler provisions to say that if you are a citizen you can stand for office; and that you can only hold one job at a time. Let’s hope the recent cases are enough of an impetus to motivate MPs from all parties to lead reform that we have known for decades needs to be made.



Ian has nearly three decades of experience and leadership in policy and politics. He spent 15 years working in the Federal Parliament. Ian has published research and opinion on Australian politics, community engagement, organisational design, parliamentary processes, public sector reform, and policy theory and practice. Ian is Principal at Hamilton Stone and an Adjunct in the Policy Innovation Hub at Griffith University.