The Constitution's Section 44: When Was It Drafted?

Section 44 of the Constitution, which can be found in several countries including India, the United States, and Australia, outlines the grounds for disqualification for those seeking election to the country's parliament. In Australia, Section 44(i) has been a source of controversy, as it bans dual citizens from holding office, leading to the disqualification of several high-profile politicians. While some Australians support this section, others have called for its amendment to reflect the country's modern, multicultural society.

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Section 44 of the Australian Constitution

The section states that any person who:

• Is under any acknowledgment of allegiance, obedience, or adherence to a foreign power, or is a subject or citizen of a foreign power, or is entitled to the rights or privileges of a subject or citizen of a foreign power;
• Is attainted of treason, or has been convicted and is under sentence, or is subject to be sentenced, for any offence punishable under the law of the Commonwealth or of a State by imprisonment for one year or longer;
• Is an undischarged bankrupt or insolvent;
• Holds any office of profit under the Crown or any pension payable by the Crown from the revenues of the Commonwealth;
• Has any direct or indirect pecuniary interest in any agreement with the Public Service of the Commonwealth, except as a member and in common with other members of an incorporated company consisting of more than twenty-five persons.

These criteria have proven challenging to interpret and apply, and almost every part of Section 44 has been controversial at some point. The section's applicability has been considered by the High Court, particularly in cases involving allegations of dual citizenship or allegiance to a foreign power. For example, in the 1946 federal election, 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) because he was a Roman Catholic and therefore under allegiance to a foreign power. The petition was later withdrawn. A similar case arose in 1950, but Justice Fullagar ruled that excluding Catholics from parliament would impose a "religious test" for public office, contrary to the Constitution.

In another notable case in 1999 (Sue v Hill), the High Court expanded the interpretation of "foreign power" in Section 44(i) to include countries with Queen Elizabeth II as their head of state, such as the UK and other Commonwealth countries. This ruling broadened the scope of the section and highlighted the changing nature of citizenship and migration in Australia, with an increasing number of people holding dual citizenship.

Section 44(i) has continued to cause political upheaval, with several high-profile politicians, including Deputy Prime Minister Barnaby Joyce, caught up in the dual citizenship saga. While there have been proposals to revise or replace Section 44, these have not been pursued. However, with nearly half of Australians having an overseas background, there are growing calls for the section to be amended to reflect modern, multicultural Australia.

Disqualification criteria

Section 44 of the Australian Constitution outlines the disqualification criteria for those seeking election to the Parliament of Australia. It has been the source of much debate and interpretation, with almost every part of the section proving challenging to apply in practice. The section has been reviewed multiple times, particularly by a Constitutional Commission in 1988 and a parliamentary committee in 1997, but no amendments have been made.

The disqualification criteria outlined in Section 44 include:

• Allegiance to a Foreign Power: Any individual who acknowledges allegiance, obedience, or adherence to a foreign power or is a subject, citizen, or entitled to the rights and privileges of a foreign power is disqualified. This interpretation has been expanded by the High Court to include countries that have Queen Elizabeth II as their head of state, such as the UK and other Commonwealth nations.
• Treason and Criminal Convictions: Individuals attainted of treason or convicted and sentenced for offences punishable under Commonwealth or state law by imprisonment for one year or more are disqualified. The High Court has clarified that the disqualification applies if the person is serving a sentence or is subject to sentencing at the time of the election.
• Undischarged Bankruptcy or Insolvency: Candidates who are undischarged bankrupts or insolvent are disqualified from standing for election.
• Office of Profit Under the Crown: Holding any office of profit under the Crown or receiving any pension payable by the Crown from Commonwealth revenues leads to disqualification.
• Pecuniary Interest in Agreements with the Public Service: Individuals with direct or indirect pecuniary interests in agreements with the Public Service of the Commonwealth, beyond their role as members of an incorporated company with more than 25 persons, are disqualified.

The application of these criteria has resulted in several high-profile politicians being forced to resign during the 2017–18 Australian parliamentary eligibility crisis, sparking further debates about the relevance and interpretation of Section 44 in modern, multicultural Australia.

Dual citizenship

The current wording of Section 44(i) of the Australian Constitution, which was debated in 1897, disqualifies anyone who is a "subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power". This has been interpreted to include dual citizens, though this was not the specific intention of the provision.

In 1990, The Canberra Times reported that at least nine MPs elected at the 1987 federal election had renounced foreign citizenships due to threatened High Court action. In 1996, the election of Jackie Kelly for the House of Representatives was challenged because she was a dual citizen of Australia and New Zealand. However, this was not pursued as Kelly conceded that she was incapable of being chosen as an MP while serving in the Royal Australian Air Force. In 1997, a committee of the House of Representatives recommended three changes to the Constitution, including deleting subsection 44(i) and inserting a new provision requiring candidates and members of parliament to be Australian citizens.

In 1998, Heather Hill, who held both British and Australian citizenship, was elected to the Australian Senate. Henry Sue, a voter from Queensland, appealed to the High Court of Australia, which ruled that the United Kingdom qualified as a "foreign power" under section 44(i), and thus Hill was ineligible to take up her Senate seat. In 2017, seven politicians were referred to the High Court due to their dual citizenship status, including Australian Greens Senators Scott Ludlam and Larissa Waters, and Deputy Prime Minister Barnaby Joyce.

Canada, New Zealand, the British Parliament, and the US Congress do not forbid dual citizens from holding office. Opinion polls in Australia have shown mixed results, with some indicating a slight majority in favour of banning dual-citizenship holders from parliament, and others indicating a slight majority against such a ban.

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High Court interpretations

The High Court of Australia has interpreted Section 44 of the Australian Constitution several times, often in its capacity as the Court of Disputed Returns. The section, which outlines the grounds for disqualification for election to the Parliament of Australia, has proven difficult to interpret and apply.

In 1975, the High Court considered the meaning of "pecuniary interest" under Subsection 44(v) in the context of Senator James Webster's eligibility. Webster was a shareholder in and managing director of a company that supplied timber and hardware to two government departments. Barwick CJ described the provision as a “vestigial part of the constitution”, inserted to protect the independence of parliamentarians rather than to safeguard against fraudulent conduct.

In 1999, the High Court broadened the scope of Subsection 44(i) in the case of Sue v Hill. The Court interpreted "foreign power" to include the UK and other Commonwealth countries, even though they share Queen Elizabeth II as head of state. This interpretation expanded the number of individuals potentially holding citizenship of a "foreign power".

The High Court has also clarified that disqualification under Subsection 44(i) is not based solely on conviction but requires the offence to be punishable by imprisonment for at least one year. The person must also be serving a sentence or awaiting sentencing at the time of the election.

In 2017, the High Court considered the eligibility of Senator Rod Culleton, who had been convicted of larceny before the election. The Court declared him ineligible under Subsection 44(ii) due to his conviction for an offence punishable by a sentence of one year or more.

The interpretation of Subsection 44(i) regarding dual citizenship has been a significant issue. The High Court has been asked to determine whether parliamentarians are citizens of a foreign power and the grounds for disqualification on these grounds. While the High Court's power to revise the law is limited, it may consider factors like lack of knowledge or consent as possible exceptions to disqualification.

The ongoing challenges of Section 44(i) highlight the complexities of modern, multicultural Australia and the changing nature of citizenship laws.

Amendments

Section 44 of the Australian Constitution, which outlines the grounds for disqualification for election to the Parliament of Australia, has been reviewed several times, but never amended. It has proven difficult to interpret and apply, and its revision has been frequently considered.

In 1988, a Constitutional Commission and, in 1997, a parliamentary committee proposed changes to the section, but these were not pursued. In 2017, following the disqualification of several high-profile politicians, Prime Minister Malcolm Turnbull requested an inquiry into the section, including the possibility of amendment. Despite public support for Section 44's ban on dual-citizenship holders, it has been suggested that the law may need to be amended to reflect modern, multicultural Australia.

Section 44 can be amended using the referendum procedure specified in Section 128 of the Constitution. Any proposal for change would need to have clear criteria that make it easy for candidates to determine whether they meet the requirements for eligibility.

The Forty-fourth Amendment to the Constitution of India, or The Constitution (Forty-fourth Amendment) Act, was enacted in 1978. It made several changes to the Constitution, including:

• The omission of entries 87, 92, and 130 from the Ninth Schedule.
• The omission of sections 18, 19, 21, 22, 31, 32, 34, 35, 58, and 59 from the Constitution (Forty-second Amendment) Act, 1976.
• The substitution of the word "six years" with "five years" in Article 83, clause (2).
• The addition of a new article, 103, outlining the procedure for deciding on questions of member disqualification.
• The substitution of a new article for article 192, outlining the procedure for deciding on questions of member disqualification for State Legislative Assemblies.

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