The Evolution Of Australia's Constitution: Section 44'S Origins

Section 44 of the Australian Constitution, which was written in 1901, outlines the grounds for disqualification for those seeking election to the Parliament of Australia. The section has been a source of controversy, particularly regarding the eligibility of candidates with dual citizenship. The interpretation and application of Section 44 have proven challenging, leading to proposals for revision or replacement. Despite the difficulties, Section 44 has not been amended, and it continues to shape the political landscape in Australia.

Explore related products

The Constitution of Australia

$8.99

To Constitute a Nation: A Cultural History of Australia's Constitution (Studies in Australian History)

$41.99 $45.99

The Australian Constitution and National Identity

$24.99 $39.95

People Power: The History and Future of the Referendum in Australia

$31.95

The Australian Constitution as it is Actually Written

$16.95

Religious Freedom and the Australian Constitution: Origins and Future (ICLARS Series on Law and Religion)

$55.99

Section 44(i) and dual citizenship

Section 44(i) of the Australian Constitution, which was written in the late 19th century, has been a source of controversy in recent years due to its implications for dual citizens seeking election to parliament. The section stipulates that those who are "under any acknowledgement of allegiance, obedience, or adherence to a foreign power" or are "a subject or a citizen or entitled to the rights or privileges of a subject or citizen of a foreign power" are disqualified from being elected to parliament. This has led to a series of high-profile politicians being forced to resign or having their nominations overturned.

In 1999, the High Court's ruling in Sue v Hill expanded the interpretation of "foreign power" to include countries in the Commonwealth, such as the United Kingdom. This set a precedent for subsequent cases and broadened the scope of Section 44(i). The increasing multiculturalism of Australia and the complex nature of citizenship laws have further contributed to the controversy. With nearly half of Australians being born overseas or having a parent born overseas, the strict requirements of Section 44(i) appear outdated and in need of amendment.

The dual citizenship saga has impacted politicians across the political spectrum, including Deputy Prime Minister Barnaby Joyce, who faced scrutiny in 2017. The "Citizenship Seven" case in 2017, which involved seven parliamentarians with dual citizenship, led to calls for a referendum to amend Section 44(i) and make the criteria for disqualification of dual citizens clearer. However, opinion polls conducted in late 2017 and early 2018 showed a close divide between those opposed to and in support of changing Section 44(i).

While Section 44(i) has been criticised for being out of touch with modern, multicultural Australia, others argue that it ensures ministers are "singularly loyal to Australia". The Australian Electoral Commission's Candidates Handbook highlights the importance of providing accurate information during the nomination process, as false or misleading information can result in criminal penalties, including disqualification under Section 44(ii). Despite the ongoing debate, Section 44 of the Australian Constitution has not been amended, and it continues to be a topic of legal and political discussion.

Section 44(i) and allegiance to a foreign power

Section 44 of the Australian Constitution lists the grounds for disqualification on who may become a candidate for election to the Parliament of Australia. It has been reviewed several times, but it has never been amended.

Section 44(i) specifically deals with allegiance to a foreign power. It states that any person 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, shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.

The interpretation of Section 44(i) has been a matter of debate and has been considered by the High Court on several occasions. In 1946, an unsuccessful candidate for West Sydney, Ronald Grafton Sarina, petitioned the High Court to declare the election of William O'Connor void under Section 44(i), claiming that as a Roman Catholic, O'Connor was under an allegiance to a foreign power. The petition was later withdrawn. A similar case arose in 1950, with independent candidate Henry William Crittenden petitioning for Gordon Anderson (Kingsford Smith) to be disqualified on the basis of his Catholicism. Justice Fullagar ruled against Crittenden, stating that such an interpretation would prevent any Catholic from holding a seat in the Australian parliament, which would be imposing a "religious test" for public office, contrary to Constitution s 116.

In 1992, the High Court made two important statements about Section 44(i) in Sykes v Cleary. First, it clarified that the determination of an individual's citizenship of a foreign power is based on the domestic law of that foreign nation. Second, it stated that Australian citizens holding foreign citizenship would not be disqualified from election to parliament if they had taken 'reasonable steps' to renounce their foreign citizenship.

In 1999, the High Court further expanded the interpretation of Section 44(i) in Sue v Hill, ruling that countries with Queen Elizabeth II as their head of state are considered 'foreign powers' within the Constitution's meaning, even though Australia shares a monarch with these countries. This ruling broadened the scope of Section 44(i) and contributed to a constitutional crisis, as migration has led to a significant increase in Australians with multicultural backgrounds and dual citizenship.

The strict requirements of Section 44(i) have been criticised as being out of touch with modern, multicultural Australia, and there have been calls to amend this section to reflect the country's changing demographics and values. However, amending the Constitution through the referendum procedure specified in Section 128 can be challenging.

Section 44(iv) and false or misleading information

Section 44 of the Australian Constitution was written in 1901 and came into effect in 1907. It lists the grounds for disqualification on who may become a candidate for election to the Parliament of Australia.

Section 44(iv) refers to an "office of profit" in the traditional sense of a position carrying an entitlement to any form of financial benefit, including salary. It has been interpreted to prevent any individual who is already in state employment from standing for parliament, even if they would have had to resign from that position if elected. The Australian Electoral Commission (AEC) advises that to give "false or misleading information", or to "omit any information if omitting that information would be misleading", is a criminal offence. However, it does not state that such a conviction could result in disqualification under s 44(ii).

The AEC's guidance is based on Section 137.1 of the Criminal Code Act 1995 (Cth), which makes it an offence to knowingly provide false or misleading information to a Commonwealth entity. The maximum penalty for this offence is 12 months in prison.

The reasons behind s 44(iv), concerning public servants, are said to derive from traditions of the British House of Commons. The concern is that a public servant could not adequately attend to both their duties as a public servant and those of a member of Parliament, and they could be subject to the opinions of the minister to whom they were responsible. This situation would impinge on the independence of members of Parliament and the maintenance of a "politically neutral public service".

In the Sykes v Cleary case, the High Court held that the 1992 by-election for the Victorian seat of Wills was void because Phil Cleary, who had been declared elected, held an "office of profit under the Crown", which violated s 44(iv). Cleary was a permanent teacher in a Victorian public school, and it was determined that he was included in the provision even though he had been on unpaid leave and had resigned from his position upon hearing that he would be declared elected.

The Constitutional Commission report of 1988 recommended that s 44(iv) be replaced with more specific provisions, and a committee of the House of Representatives in 1997 termed s 44(iv) "something of a minefield". Despite frequent consideration, the section has not been amended.

Explore related products

The Constitution of a Federal Commonwealth: The Making and Meaning of the Australian Constitution

$60 $148

The Captive Republic: A History of Republicanism in Australia 1788–1996 (Studies in Australian History)

$53.99

The Commonwealth of Australia Constitution act (63 & 64 Vic. c. 12): Together With Introduction, Table of Statutes, Table of Cases, Digest of Cases and Index

$31.95

The Annotated Constitution of the Australian Commonwealth

$41.95

The Constitution of Australia: A Contextual Analysis (Constitutional Systems of the World)

$37.75

Five Things to Know About the Australian Constitution

$41.99 $41.99

Section 44(v) and indirect pecuniary interests

Section 44 of the Australian Constitution lists the grounds for disqualification on who may become a candidate for election to the Parliament of Australia. It has been reviewed several times, but has not been amended. One of the subsections, Section 44(v), states that a person cannot be chosen or sit in Parliament if they have any "direct or indirect pecuniary interest in any agreement with the Public Service of the Commonwealth". This is to prevent the corruption of members by the Executive and to avoid conflicts of interest that could lead members of Parliament to prioritize their financial interests over impartial judgement.

The interpretation of "pecuniary interest" has been considered by the High Court on several occasions. In 1975, the Court considered the eligibility of Senator James Webster, who was a shareholder in and managing director of a company that supplied timber and hardware to the Postmaster-General's Department and the Department of Housing and Construction. The Court's interpretation of "pecuniary interest" was expanded in the 2017 Bob Day case, which found that Day had an "indirect pecuniary interest" in an agreement with the Commonwealth and was therefore ineligible for nomination as a senator. This case also led to scrutiny of Nationals member of the House of Representatives, David Gillespie, who owned a shopping complex that leased premises to an Australia Post licensee.

The interpretation of "pecuniary interest" in Section 44(v) has also been considered in relation to Peter Dutton, who was accused of having a pecuniary interest in an agreement with the Commonwealth Public Service as a beneficiary of the RHT Family Trust. The childcare business in question received a Commonwealth government subsidy. While a Federal Court challenge to Dutton's eligibility was dismissed, legal experts have since debated the merits of the case, with some arguing that Dutton's interest in the trust did constitute an "indirect pecuniary interest" that would disqualify him from Parliament.

Section 44 and disqualification from parliament

Section 44 of the Australian Constitution outlines the grounds for disqualification regarding eligibility for election to the Parliament of Australia. It has been reviewed several times, but no amendments have been made. The section has proven difficult to interpret and apply, with almost every part of it being contested at some point.

The section has several subsections, with 44(i) and 44(iv) drawing particular attention. 44(i) states that any person 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"

Is disqualified from sitting in parliament. This subsection has been the source of much controversy, as it has led to the disqualification of several high-profile politicians during the 2017-18 Australian parliamentary eligibility crisis. The interpretation of "foreign power" has been expanded by the High Court to include countries in the Commonwealth, such as the UK, which has broadened the scope of this subsection significantly. This interpretation, combined with Australia's increasingly multicultural population, has created a constitutional crisis.

Subsection 44(iv) states that anyone who:

> "Holds any office of profit under the Crown, or any pension payable during the pleasure of the Crown out of any of the revenues of the Commonwealth"

Is disqualified. This subsection was invoked in the case of Hollie Hughes, who was deemed ineligible to hold office due to her appointment to the federal Administrative Appeals Tribunal, considered an office of profit under the Crown.

Other subsections of Section 44 include 44(ii), which covers convictions for treason or other offences punishable by imprisonment for at least a year; 44(iii), which relates to bankruptcy or insolvency; and 44(v), which addresses pecuniary interests in agreements with the Public Service of the Commonwealth.

The Australian Electoral Commission (AEC) reproduces Section 44 in its Candidates Handbook, warning that providing false or misleading information on nomination forms is a criminal offence punishable by up to 12 months' imprisonment. However, the AEC does not explicitly state that such a conviction could lead to disqualification under 44(ii).

Frequently asked questions