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SECTION 44, MP QUALIFICATIONS and the HIGH COURT Graeme Orr* the Australian Constitution Does Not Explicitly Guarantee a Right to Vote

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Comments FERTILISING A THICKET: SECTION 44, MP QUALIFICATIONS AND THE HIGH COURT Graeme Orr* The Australian Constitution does not explicitly guarantee a right to vote. But it does, in some arcane detail, prescribe who we cannot vote for. For thoroughgoing democrats this is a paradox. Despite years of criticism of s 44 – the source of five constitutional disqualifications for service in the national Parliament – no referendum has been held to rationalise it.1 Instead, for decades a pragmatic approach prevailed.2 The strict letter of s 44 was honoured in the breach as much as the observance. Examples from the first half of the 20th century include prominent Labor Party figures such as King O’Malley (probably born in Kansas) and Prime Minister Chris Watson (born in Chile), as well as Prime Minister Chifley (Abercrombie Shire Councillor even while leading the nation) and Arthur Calwell (Melbourne City Councillor while an MHR and Minister). Neither their opponents, nor the media of their day, accused these leaders of suffering disqualifying conflicts of interest. The first direct judicial consideration of s 44 does not appear until 1950. It was a risible, sectarian case alleging that Catholic MPs held allegiance to the Holy See.3 True, there have been sporadic court cases since, notably four prominent and successful ones between 1988 and 1999.4 So the political system could hardly plead ignorance of s 44. The better resourced political parties responded by adopting systems of pre-vetting candidates, of varying levels of exactitude. MPs have largely avoided egregious conflicts of interest. Yet, on the whole, s 44 was treated as an appendix to the body politic that was best ignored. No more. In 2017 the appendix burst, with debilitating consequences for the body politic. The rupture especially involved MPs with unknown dual citizenships of foreign powers. Into this morass waded a High Court whose interventions have been problematic. The resultant mess was labelled, by one international news outlet, as “the world’s most ridiculous constitutional crisis”.5 In truth it has been a slow-moving farce rather than a crisis. The farce drags on at the time of writing and, at best, seems likely to be temporarily sutured. In the end, none of our institutions of governance emerge from this farce with their reputations enhanced. SECTION 44(I) – SUBSTANCE As events unfolded over 2017, first “gotcha” media investigations, then a self-imposed parliamentary audit of MPs’ birthplaces and ancestors, exposed more and more MPs with likely dual citizenships. The prohibition against standing for or sitting in the Australian Parliament, while under a dual citizenship, * Professor, Law School, University of Queensland, Australia. 1 For recommendations, see Senate Standing Committee on Constitutional and Legal Affairs, The Constitutional Qualifications of Members of Parliament (AGPS, 1981) and House of Representatives Standing Committee on Legal and Constitutional Affairs, Aspects of Section 44 of the Australian Constitution: Subsections 44(i) and (iv) (Australian Parliament, 1997). For exegesis and critique, see Gerard Carney, Members of Parliament: Law and Ethics (Prospect, 2000) Chs 2–4. 2 “I venture to say that if the letter of the law as it is written in sections 44 and 45 of the Constitution were to be followed we would possibly have a very thin Parliament”: Mr Anthony, Australian Country Party leader, Parliamentary Debates, House of Representatives, 22 April 1975. 3 Crittenden v Anderson (unreported, Court of Disputed Returns, Fullagar J, 23 August 1950). A similar petition (Sarina v O’Connor) was raised by a Protestant People’s Party candidate in 1946 but withdrawn. A very early election petition alleged that a candidate held an office of profit as consul to Japan, but the point is not even mentioned in the judgment:Maloney v McEacharn (1904) 1 CLR 77. 4 Re Wood [No 3] (1988) 167 CLR 145; 62 ALJR 638; Sue v Hill (1999) 199 CLR 462; 73 ALJR 1016; [1999] HCA 30 (UK citizenships); Sykes v Cleary [No 2] (1992) 176 CLR 77; 67 ALJR 59; and Free v Kelly (1996) 185 CLR 296; 70 ALJR 809 (offices of profit). 5 David Fickling, “The World’s Most Ridiculous Constitutional Crisis”, Bloomberg, 17 August 2017. (2018) 29 PLR 3 17 Please note that this article is being provided For information concerning permission to for research purposes and is not to be republish material from this journal, either in reproduced in any way. If you refer to the part or in its entirety, in any medium, please article, please ensure you acknowledge both refer to http://sites.thomsonreuters.com.au/ © 2018 Thomson Reuters (Professional) Australia Limited the publication and publisher appropriately. journals/permissions. for further information visit www.thomsonreuters.com.au The citation for the journal is available in the For general permission queries, contact or send an email to [email protected] footline of each page. [email protected] Comments resides in s 44(i). Its roots lie in notions of fealty and allegiance to a single monarch, arising from the early 18th century settlement between the Scottish and English crowns.6 Oversights in relation to dual citizenship have been responsible for the bulk of the MPs who have been impugned. Of 16 MPs referred to the High Court in the past year, 13 were on citizenship grounds. Of those 13, two survived and one continues to fight for their place.7 Another four candidates have been subject to court argument about their qualifications to inherit seats from disqualified MPs. They include one on citizenship grounds.8 In sum, the citizenships of some 14 MPs or candidates have been questioned in court; another six have had their qualifications questioned on other grounds.9 None of the MPs acted fraudulently in declaring themselves “not disqualified” on nomination forms. To appreciate this, the many ways citizenship can be acquired should be kept in mind. There is the jus sanguinis (blood/descent). There is the jus soli (soil/place of birth). There is marriage. And there is positive action to acquire citizenship or declare allegiance. Each route is patrolled by foreign law, which waxes and wanes. To know or make sense of that law, overseas legal advice is often required. On top of this is the “folk law” of families and misconceptions based on local citizenship law. Numerous MPs came to grief because of assumptions, instilled as children, about their status. Others were confused because, for many years, Australian citizenship was forfeited when someone took out another nationality. Anyone naturalised in Australia in that era, especially at a young age, might wrongly assume that Australian naturalisation automatically renounced any foreign citizenship. But Australian law cannot undo foreign law. The key substantive case was Re Canavan.10 For once the “others” is important, since the judgment embraced seven cases in one. Put simply, legal argument centred on whether there should be latitude for candidates who had not been on reasonable notice of their dual citizenship. The High Court however was not swayed by sympathies aroused by the critique (sketched above) of the value or workability of s 44(i). Instead, it took a hard line to the disqualification, reinforcing 25-year old dicta from Sykes v Cleary: Section 44(i) is not concerned with whether the candidate has been negligent … It does not disqualify only those who have not made reasonable efforts to conform to its requirements. Section 44(i) is cast in preemptory terms.11 This was buttressed by a claim that the constitutional purpose was to avoid the appearance of clashing loyalties or obligations that might arise where a foreign law recognised an Australian as a dual citizen. That was so regardless of whether that person was “minded to act upon his or her duty of allegiance”.12 Or, it must be added, regardless of whether they were even aware it existed. In short, s 44 is what it is, and the Court was not minded to make it more reasonable. 6 Carney, n 1, 29 and Caroline Morris, Parliamentary Elections, Representation and the Law (Hart, 2012) 53. 7 The 10 (to date) who lost seats to dual citizenships are: Mr Joyce and Senator Ludlam (New Zealand citizenship), Messrs Alexander and Feeney and Senators Kakoschke-Moore, Lambie, Nash, Parry and Roberts (UK citizenship) and Senator Waters (Canadian citizenship). Senators Canavan (possible Italian citizenship) and Xenophon (British Overseas Territory citizenship) survived. The pending case involves Senator Gallagher (UK citizenships). 8 Kenyan-born Lucy Gichuhi: Re Day [2017] HCA Trans 86. 9 Including five who fell foul of s 44’s other limbs. Three lost their cases: Senator Day (s 44(v) pecuniary interest in lease of his constituency office), Senator Culleton (s 44(ii) criminal conviction) and Ms Hughes (s 44(iv) office of profit). See, respectively: Re Day [No 2] (2017) 91 ALJR 518; [2017] HCA 14; Re Culleton [No 2] (2017) 91 ALJR 311; [2017] HCA 4 and Re Nash [No 2] (2017) 92 ALJR 23; [2017] HCA 52. In Re Lambie [2018] HCA Trans 7, Senator Lambie’s replacement, Mr Martin, was found not to have held an office of profit under the Crown merely by being an elected member of a local government. Mr Storer assumed a seat won by the NXT Party, despite its argument that his earlier expulsion from the party should disqualify him, given the party- ticket nature of Senate elections: Re Kakoschke-Moore [2018] HCA Trans 15. Mr Gillespie faces a s 47 “common informers” action, alleging a s 44(v) pecuniary interest in a shop sub-leased to Australia Post: Alley v Gillespie [2017] HCA Trans 257. The case against Gillespie seems speculative. 10 Re Canavan (2017) 91 ALJR 1209; [2017] HCA 45.
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