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Electoral democracy and section 44: a report from the Sargasso Sea

29 May 2018

How do we chart a better way through the Constitution’s cross-currents?

Right:

Rush job? A cautionary poster published in the lead-up to the fateful 1897–97 Australasian Federal Convention. Deakin Collection/National Library of Australia

Rush job? A cautionary poster published in the lead-up to the fateful 1897–97 Australasian Federal Convention. Deakin Collection/National Library of Australia


To understand how we got to where we are, it helps to start by remembering that the writing of our Constitution was less a technical exercise by experts than a bunfight between some big fish from small ponds, thrown together in 1897–98 to design a big pond, with lots of them wanting to make a splash. So, instead of having one section on who could stand for parliament, we had a fairly open one dealing with qualifications (section 34), proposed by Tasmania’s Andrew Inglis Clark, which basically left the question to the electors, and another, more control-oriented section on disqualifications, from Queensland premier Samuel Griffith, that listed a number of grounds for prohibiting people from standing: nationality, treason, bankruptcy, public employment, or having a contract with the government.

There was not a great deal of discussion about this section, except for the bankruptcy clause, which NSW delegates tried unsuccessfully to delete. The nationality clause was copied from the Canadian constitution, and didn’t seem controversial, since the vast majority of people in Australia were “subjects of the Queen.” The clause disqualifying anyone “attainted of treason, or convicted of felony or any infamous crime” was progressively expanded until it covered anyone convicted of an offence punishable by twelve months’ imprisonment, regardless of the sentence actually imposed.

But in the closing stages of the convention, Edmund Barton, who became the first PM, slipped new wording into the citizenship clause. The words that had been debated and agreed to at the convention were cast in the active voice: anyone who had “done any act whereby” they became “a subject or citizen of a foreign power” was excluded. Under this version, none of the fifteen MPs who have been thrown out of parliament over the past six months would have lost their seats. Barton wanted to replace it with the present wording, which provided that anyone who had foreign citizenship, whether he or she had done anything to acquire it or not, or who were entitled to its “rights and privileges” was disqualified.

We don’t know why he made this change, since he never admitted to the convention that he had done it, let alone why. In the last hour of the Sydney session, as head of the drafting committee, he got agreement that the committee could make changes to clauses already determined, and he used this as the authority to insert the new wording. It was then incorporated in the 400 amendments that he presented to the convention at 11am on the second-last day of the (final) Melbourne session.

Barton assured delegates that none of these amendments made any change to what had been agreed in debate, apart from widening the scope of the treason clause, and asked that they be accepted en bloc. When Victoria’s Isaac Isaacs and others objected, it was agreed that the text would be put to the vote in chunks, and there would be no discussion unless someone raised an objection. No explanation was given for the changes that had been made to section 44, and the only discussion was the final NSW attempt to remove the bankruptcy provision, and so the new citizenship provision passed into the Constitution without any explanation, discussion or specific agreement.

For a long time, section 44 didn’t seem to create any problems; most of the population were subjects of the Queen (or King), and those who weren’t rarely sought election — or if they did, no one raised an objection. Two members of the first federal parliament were probably disqualified under section 44(i) — King O’Malley, who had been born in Kansas but claimed to have been born in Canada, and Chris Watson, the first Labor PM, who had been born in Valparaíso to a Chilean father of German extraction and a British-born mother from New Zealand — but no one thought to use the Constitution to have them thrown out.

Indeed, when a Perth lawyer found that UK Border Control had no record of Tony Abbott having renounced his British citizenship and sought a High Court order that he produce evidence that he had, Justice Kenneth Hayne declared this to be “vexatious.” Mr Abbott had ticked the box on the form and “it is not to be assumed” that he was incorrect in doing so, said Justice Hayne. On appeal, Chief Justice Susan Kiefel and Justice Patrick Keane found that there was “no uncertainty” about Hayne’s decision and making the order against Abbott would be an “abuse of process.”

So the High Court was not anxious to inquire into the validity of candidates’ box-ticking, and perhaps it was as surprised as the rest of us to discover, when it finally agreed to look, that sixteen of those who had ticked the box (7 per cent of parliament) did in fact have foreign citizenship (though in one case the judges decided that it didn’t count) and another might have had but they couldn’t work out whether he did or not. It would certainly have come as a surprise to the delegates at the Constitutional Convention to find that fifteen elected MPs, all of whom were “subjects of the Queen,” had been expelled from parliament as subjects or citizens of “a foreign power.”

But isn’t it just about following the rules?

Well, no, because the rules aren’t very clear, and there hasn’t been much umpiring to clarify them. Parliament has not often referred cases to the High Court, it’s not easy for anyone else to get a case before the court, and when a case does reach the court, the court hasn’t been all that much help in clarifying the rules.

It must be remembered, too, that citizenship is only one of the sources of disqualification. Anyone working for government — which appears to include school teachers, nurses and firefighters — is disqualified, and the original provision disqualifying for treason or “other infamous crime” has been spread wider and wider and applied to disqualify an elected senator who had been convicted (in his absence) for stealing a set of car keys, a sentence that was subsequently annulled – but as far as the High Court was concerned, the annulment did not remove the disqualification.

And the court has not ruled on the most difficult citizenship cases. Section 44 disqualifies not only foreign citizens but anyone who is “entitled to the rights and privileges” of a foreign citizen. This would appear to disqualify anyone entitled to a foreign citizenship, whether they have applied for it or not — for instance, Julia Banks, who may be entitled to Greek citizenship but who has not been referred to the High Court because Turnbull is protecting his own.

These words also appear to disqualify a much bigger class of people: anyone with one or more British-born grandparents is entitled to an “ancestry visa,” which gives them the right to enter Britain, to live there, and to take employment. I got one of them a dozen years ago to enable me to take a job at a British university. The High Court ruled that although Nick Xenophon was a British citizen when he nominated, this didn’t disqualify him because his was a third-class citizenship that didn’t give him the right to enter Britain. The UK ancestry visa is a “reverse Xenophon”: Xenophon had the citizenship but not the rights; with my ancestry visa, I had the rights but not the citizenship — and for that reason, I (and anyone else with a UK-born grandparent) should be disqualified. And, as a constitutional lawyer told the parliamentary committee, you can renounce a citizenship but you can’t renounce an entitlement: it’s there in UK law, no matter what you do. So far from settling the uncertainties, the drama of the last six months has left them as murky as ever.

So where does this leave us?

We started with what seemed to be a small problem — a couple of parliamentarians disqualified for fairly arcane reasons. It then grew to fifteen thrown out, including the deputy prime minister, and a parliamentary committee was asked to look into the problem. It estimated that nearly half the population were excluded in law, or impeded in practice, from standing for parliament — and this estimate did not take into account the UK ancestry visa, for which a very large number of Australians (including Tony Abbott) would qualify.

And the reasons for exclusion are not very persuasive. People find it difficult to believe that John Alexander, who represented Australia in the Davis Cup for fifteen years, should be expelled from parliament as a foreigner because his father had arrived from Britain as a three-year-old over a century ago. As usually happens, the electors showed what they thought of the High Court’s decision by voting him back into office.

So we have ended up with having half the population disqualified or effectively impeded, but no one able to do anything about this because while the rules about the qualifications for candidature are set by parliament, and amended from time to time as required, they are overridden by another set of rules on disqualifications, subject to the decisions of foreign (or in some cases state) governments, as understood and applied by the High Court to particular cases presented to them.

Where do we go from here?

In the last thirty years, this has been recognised as a problem by three parliamentary inquiries, the first two of which have recommended that section 44 be revised or abolished. Risk-averse governments have accepted these recommendations, and then failed to do anything about them. This year’s inquiry proposed that the section should either be abolished (and its provisions covered by other sorts of action) or amended by adding the words “until the parliament otherwise provides,” which would enable parliament to determine both qualifications and disqualifications. This would still require a constitutional referendum, but the referendum would not in itself change the rules; it would only change the location where the rules are made: from foreign governments and the High Court to the national parliament (which already makes all the other rules about elections).

This is perhaps the most promising outcome we could hope for in today’s bitterly and destructively partisan political climate. It comes from a committee on which the four main parties in parliament were represented, and it does not commit them to any particular change, or to any change at all. And since all of these parties have lost some of their parliamentary members (either temporarily or permanently) because of the High Court’s unpredictable reasoning, they might be more comfortable with making the qualifications for candidature part of the normal government of the country.

This was, after all, the way that universal adult suffrage was introduced. At the time of the constitutional convention, women had the vote in South Australia but not in the other states. (Women got the vote in Western Australia after the convention but before Federation.) Delegates recognised that this was a very divisive issue, and rather than have Federation derailed by an argument about the franchise, they agreed that until the parliament otherwise provided, they would use the franchise applying in each state, but that no one who had the vote at Federation could be deprived of it. When the first federal parliament met, it became clear that women having a vote in two states but not the other four was indefensible, and the Commonwealth Electoral Act of 1902 simply provided for universal adult suffrage — and there was no drama or public resistance. Within a decade, women had won the vote in each of the four eastern states, and the political problem had evaporated.

Much has been said about what the Australian people want, and whether they would accept a constitutional change. I think there is a lot of evidence to show that the Australian people want the people they have elected to govern them to do their job, and when problems arise, to move promptly and effectively to fix them. The parliamentary committee’s proposal is not the only way this can be done, but it is the best horse in the race. ●

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Protesters last year at the Melbourne plant of mining services company Downer, which had been contracted to help build Adani’s Carmichael mine. The two companies subsequently ended their association. Julian Meehan/Flickr

Protesters last year at the Melbourne plant of mining services company Downer, which had been contracted to help build Adani’s Carmichael mine. The two companies subsequently ended their association. Julian Meehan/Flickr