Oz Blog News Commentary

MPs’ disqualification and Constitution section 44

May 10, 2018 - 13:44 -- Admin

I posted the piece over the fold some time ago (early January) but the fact that the federal Parliament’s Joint Standing Committee on Electoral Matters is about to publish its report into the ongoing legal and constitutional debacle surrounding the Parliamentary disqualification in Constitution section 44 suggests it’s worth reposting. It seems likely that both major parties will reject any suggestion that the Committee makes for a referendum to resolve the situation. Personally I think my suggested solution is more likely to meet with popular acceptance than most of the other possibilities, but then I would say that:

The slow motion debacle whereby federal MPs of all parties have been progressively unmasked as dual citizens (or entitled to the rights thereof) will continue once Parliament and the High Court resume for 2018.  Moreover, simply asserting that MPs and political aspirants will just have to be more careful is absurd, as anyone knows who has actually made a serious effort at understanding the complexities of the issues involved (potentially requiring exploration not only of candidates’ family backgrounds going back several generations, but also the esoteric legal minutiae of potentially two or three separate countries as well as Australia including relevant legal changes stretching back many decades).

Nevertheless, it is sadly clear from a dispassionate reading of both mainstream and social media that a referendum designed to remove this pointless burden on politicians would probably fail. Most other nations do not disqualify their citizens from eligibility for political office if they hold dual citizenship, nor do Australian states. But for whatever reason a very substantial proportion of the Australian public appears to think that Australia’s federal politicians should be required to jump through this legal hoop as a prerequisite to elective office.

Accepting that reality, maybe the parties could consider what is again a second best option but one that would be quite workable in my view. There should be a referendum involving a minimalist amendment to Constitution s44 which would remove the words “of being chosen or” so that the section would read:

Any person who [list of disqualification grounds including dual citizenship/allegiance, treason, bankruptcy, office of profit under the Crown etc] shall be incapable of being chosen or of sitting as a senator or member of the House of Representatives. …

The effect would be that only a successful candidate would need to worry about dual citizenship issues, resigning from public sector employment or divesting contracts with the Commonwealth. The section would go on to provide that the successful candidate would have 3 months from the date of declaration of the polls to comply with any relevant prohibitions before disqualification took effect. During that time they would have available appropriate advice and assistance from the Australian Government Solicitor to sort any such matters out. If they failed to do so the candidate with the next highest Senate vote would be declared elected, and a by-election would be needed for any disqualified MHR. Hopefully the majority of even Australians who have a perverse taste for putting prospective MPs through a Trial by Ordeal would think that was fair enough, and hopefully all parties could bring themselves to support it given that it is very likely that all will in the near future have suffered tangibly by the operation of the section as it currently reads.