We’ve all become accustomed to Canberra’s biennial coups, but the latest one added something fresh to the mix: the Constitution. Even though the nation’s founding document doesn’t even mention the office of prime minister, Turnbull’s and Morrison’s big day commenced with every politician and pundit in Canberra speed-reading twenty-six pages of overnight constitutional advice from the solicitor-general. The advice’s subject was, of course, section 44, the once-obscure section covering the disqualification of federal legislators that has cast a very long shadow over this term’s parliament.
Section 44 now taints Australian politics in all sorts of ways, big and small. Two weeks back, both the White Australia policy and a “final solution” were mentioned approvingly by Fraser Anning, whose presence in the Senate and belated maiden speech came courtesy of section 44’s ban on dual citizen MPs. Anning replaced Malcolm Roberts, whose own maiden speech ploughed the safer ground of climate scepticism. The following day, the Senate, having united briefly against Anning, split bitterly on euthanasia. The razor-thin majority who voted against Territorians’ right to die when they choose included Steve Martin, whom the High Court installed in place of the pro-euthanasia Jacqui Lambie, and Jim Molan, a Liberal also-also-ran who replaced (dual) National Fiona Nash, adding a staunch Abbott ally to Turnbull’s divided caucus.
More dramatically, section 44 was directly responsible for our US-style electoral Super Saturday four weeks ago. When (as always happens) the voters returned all four constitutionally ousted incumbents, Shorten’s leadership woes became Turnbull’s and his fall became inevitable. Or so it seemed until, shortly after Peter Dutton launched his ambush, he too found himself ambushed by section 44. The morning after journo Hugh Riminton revealed the Queenslander’s possible disqualification, the Liberal caucus rejected his first challenge 48–35.
This time, though, the constitutional problem wasn’t anyone’s ancestry. Dutton’s citizenship register declares that he, his parents and his grandparents are all Australian-born — indeed, they are all Queenslanders. Instead, the trouble is buried in his register of financial interests, which lists his family trust and, through it, his wife’s ownership of two Brisbane childcare centres. Like most such centres since the Whitlam era, Camelia Avenue and Bald Hills Childcare receive plenty of federal cash, mainly in the form of subsidies for parents’ fees. Riminton detailed how some of the resulting financial windfalls flowed to Dutton. He also produced two leading constitutional law academics, Anne Twomey and George Williams, to declare that the Queenslander had a case to answer under the last paragraph of section 44.
The list of cryptic constitutional disqualifications (foreign citizenship, criminality, bankruptcy and public salaries) in section 44 is rounded out by a ban on any federal MP who has “any direct or indirect pecuniary interest in any agreement with the Public Service of the Commonwealth.” This ban has featured twice before in Australian history. The first time came in 1975, during the nation’s biggest constitutional crisis (so far), when the Senate, nudged rightwards by several unelected casual vacancies, was threatening the Whitlam government’s survival. In March of that year, the Age reported that Country Party member Jim Webster’s family timber company was selling planks to federal departments in possible breach of section 44.
In a telling contrast to recent times, the major parties were united in their response, quickly voting to refer one of their own to the High Court amid concerns that duly elected MPs may unwittingly unseat themselves. Chief justice Garfield Barwick controversially opted to hear the case alone and declared it “a matter for great regret that the composition of a house of the parliament should depend upon such highly technical differentia.” Represented by future High Court judge and governor-general William Deane (one of the few other High Court judges to fret about section 44’s overreach), Webster survived the challenge. Barwick deemed the timber sales too sporadic to expose the senator to pressures from the Whitlam government.
Alas, the next time a “pecuniary interest” case reached the High Court, over four decades later, the justices tore open the constitutional sore. Early last year, Family First’s Bob Day became the only MP (to date) to be disqualified because of his financial dealings. Overruling Barwick and presaging their citizenship rulings to come, the court declared section 44 to be no technicality. Instead, it was a bulwark against split allegiances, specifically Day’s simultaneous role as (effectively) a private landlord and a public tenant of an ugly office building just east of Adelaide’s CBD. Within months, the threats some MPs faced for their innocuous connections with foreign countries overshadowed the danger the Day ruling posed for MPs with innocuous connections with our own government.
Behind the scenes, however, parliamentarians’ pecuniary interests were being quietly weaponised for later deployment.
Imagine the Labor Party’s delight if Dutton’s section 44 problem were only revealed after he was declared our thirtieth prime minister (or perhaps even during the next election campaign). Alas, Riminton’s scoop revealed the story too early and unconvincingly. Dutton quickly deployed his own QC’s advice declaring what all constitutional lawyers know: that the Constitution doesn’t bar MPs from having financial interests in federal money, but only in federal “agreements.” That forced shadow attorney-general Mark Dreyfus to publish advice he had been sitting on for at least four months that argued that the three-way flow of cash between parents, centres and the federal government fell within section 44’s vibe. The bombshell was that its co-author was Bret Walker, the first among equals of the High Court bar. Walker, who apparently penned the advice during a break from his role as royal commissioner into water theft, declared Dutton “incapable of being chosen for the forty-fifth parliament.”
Or did he? The trick with all legal advice is to distinguish between “could,” “should” and “would.” While Walker’s view was that Dutton should be unseated, he baulked at saying he would be. Instead, there was only “a reasonable prospect” that the court would so hold. And details of his argument were all about what the court “could” decide. The childcare subsidy scheme, Walker unconfidently declared, contains what “can be said to be mutual obligations” that are “not beyond the so-called outer limits of the notion” of an “agreement,” mainly citing some examples listed in the judgement of Justice Stephen Gageler in the Bob Day decision.
But, as Walker knew, Gageler used his list to demonstrate that such “patently benign” transactions — things like buying a money order at the post office — must be outside section 44. In Gageler’s view, that section only covers specific “agreements with the Public Service of the Commonwealth,” not the to-and-fro of federal cash regulated by general statutes. All Walker could muster in response was the claim that childcare subsidies aren’t for everyone. But nor are most government benefits, including welfare, HECS debts or even Medicare rebates.
Are practising doctors (like Bob Brown) or recent students (such as current Greens senator Jordon Steele-John) unelectable to the federal parliament? Every honest and competent constitutional lawyer would answer, “I don’t know for sure.” Section 44 is just too vague and the High Court’s judgements on it too rare, sparse and cryptic for anyone to confidently rule most Australians in or out of constitutional electability. Hence, solicitor-general Stephen Donaghue’s advice, released last Friday morning, was mostly about what the High Court “should” so hold about Dutton: that the Queenslander is indeed the beneficiary of federal cash, but not in any agreement with the federal government. Instead, the only agreement in play was between parents and childcare centres. (If you need convincing of just how capricious section 44 is, consider this: Donaghue’s view was that Dutton’s biggest problem isn’t the subsidies given to most parents but federal funding paid directly to Camelia Avenue Childcare to hire an extra staff member to care for a disabled child.)
As for what the High Court “would” hold in Dutton’s case, Donaghue, unlike Walker or Dutton’s lawyer, bluntly told the nation that “it is impossible to state the position with certainty.” There were no precedents, no detailed facts and a divided High Court that “might endeavour to create a clearer line in the interests of certainty.” The division appeared in Day’s case. Gageler was the only judge who committed himself to allowing people like Dutton to stay in parliament, while the two Victorian judges, Geoffrey Nettle and Michelle Gordon, said they would largely focus on the question (dangerous for the Queenslander) of potential conflict of interest. The rest didn’t say or, in the case of one, thought it “unnecessary to reach a concluded view upon the outer limits” of section 44 to resolve Day’s position. Dutton’s fate was very likely to be in the hands of the current court’s troika of Patrick Keane, Virginia Bell and chief justice Susan Kiefel.
Dutton got his forty-third signature and Scott Morrison narrowly won the party-room vote around the same time that I was showing Donaghue’s advice to my law students as an example of how to communicate effectively about genuinely uncertain issues. The mystery of Dutton’s constitutional eligibility didn’t decide who now leads the nation, and rightly so, although no one can know whether it was a factor. In a startling coda, the party room elected Josh Frydenberg to be its deputy leader (and our next treasurer), ignoring his own unresolved section 44 problems arising from his possible past and future Hungarian or Polish citizenship. I am sure that, soon after, a Liberal Party staffer gathered up the party’s own set of QC advices about Labor Party luminaries’ constitutional problems — notably Anthony Albanese’s possible Italian citizenship via his biological father — to hand over to the new leadership team.
Malcolm Turnbull’s last substantive vote in parliament concerned whether Peter Dutton should be referred to the High Court. Labor’s motion was defeated by a single vote. Does this leave the true composition of our parliament open to question? Does it even threaten our Constitution? Many lawyers would say so, but I don’t. For all their missteps when it comes to section 44, our founding fathers got one thing right: they didn’t leave the question of whether an MP is qualified in the hands of the courts; rather, it was a matter for parliament itself. That is as it should be when it comes to the essentially political question of whether an elected MP has a conflict of interest. The High Court’s role only arises if parliament decides to leave the issue of an MP’s election in the hands of our judges. In my view, that should only happen in cases where there is a genuine threat of split allegiances arising unless certain groups of people — investors in childcare centres, say, or potential Italians — are barred from political office.
As I’ve argued previously, though, the cryptic words of section 44 do more than just determine whether an MP was or wasn’t properly elected. They also profoundly influence who seeks office, who gets preselection and — potentially — who wins the vote. All the forces at play last week — the secret advices, political ambushes and pundits weighing in about what the High Court could, would and should do — are just as likely to play a role in all federal elections to come. No one will shed a tear if that means Dutton will soon have to choose between running for re-election and divesting himself of his wife’s childcare centres. But the nation will be much the poorer if public sector investors, GPs, or people with HECS debts or on welfare payments are forced to give up these things altogether just to nominate for federal office. Unless people like Dutton are referred to the High Court, we will never know whether any of this is necessary.
So, Australia, I have a proposal. My ancestry means that I’m someone who sits on the (current) outer limits of constitutional electability in multiple ways: I might be a Pole, or I might be an Uzbek. I only have to write a letter to become a German or, with a plane ticket, an Israeli. I hold two possible offices for profit under the Crown (as a professor at a public university and an adviser to a parliamentary committee) and perhaps have a pecuniary interest in our federally subsidised students. I’m also amenable to make a small investment in a closely held childcare centre and more than willing to commit contempt of court.
So, why not vote me into federal parliament as a constitutional canary in the coalmine? I promise that I’ll take no salary and cast no votes, except to refer myself repeatedly to the High Court, where I’ll represent myself at no expense to the public purse. In short, I’ll cost you absolutely nothing. And I might just pave the way for a good many much more qualified people to serve the nation in the future, free of constitutional shadows. ●