Forever isn’t for everyone; Is forever for you?… The Attack of s 44

Holy shit!  Who would have guessed that s 44 of the Australian Constitution would bite as hard as it has over the past year or so?  Rod Culleton (One Nation), Bob Day (Family First), Scott Ludlam (Greens), and now Larissa Waters (Greens) have all fallen victim of s 44, either through High Court intervention or through voluntary resignation to inevitability.  Technically, Bob Day was twice ineligible under s 44.  And there’s another case on the boil: National Party MP, David Gillespie.

What I find interesting — really interesting — is how difficult it is to intuit the purpose of s 44.  It’s a provision that excites popular imagination.  Perhaps it’s a relic of a racist past.  Perhaps it is a protection against foreign interference.  Perhaps it should be amended.  Perhaps it shouldn’t be.

But perhaps it’s not the technicality of the provision that we should consider, but bigger theories about constitutional democracies.  Why should there be restrictions on who can become a parliamentarian?  Shouldn’t we be able to elect whomever we want?

When it was drafted, the Australian Constitution was praised for how democratic it is.  Learning from the hideous mistakes of the US Constitution, it leaves a lot in the hands of future parliaments to decide for themselves.  ‘Until Parliament otherwise provides’ occurs so frequently throughout the text that a lot of the provisions within the Constitution have become dead letters.  Section 48, for example, says only:

‘Until the Parliament otherwise provides, each senator and each member of the House of Representatives shall receive an allowance of four hundred pounds a year, to be reckoned from the day on which he takes his seat.’

Parliament has otherwise provided, so this section doesn’t do anything beyond note that our parliamentarians should get a salary.

Here’s s 34:

Until the Parliament otherwise provides, the qualifications of a member of the House of Representatives shall be as follows:

(i)  he must be of the full age of twenty-one years, and must be an elector entitled to vote at the election of members of the House of Representatives, or a person qualified to become such elector, and must have been for three years at the least a resident within the limits of the Commonwealth as existing at the time when he is chosen;

(ii)  he must be a subject of the Queen, either natural-born or for at least five years naturalized under a law of the United Kingdom, or of a Colony which has become or becomes a State, or of the Commonwealth, or of a State.

Again, Parliament has otherwise provided and so this section doesn’t do anything.  As we will see, it doesn’t even come to the aid of people who are dual citizens of Australia and the United Kingdom who have been elected to Parliament.

But s 44 — the section which states who is disqualified from sitting for parliament — is not one of those ‘until Parliament otherwise decides’ sections.  It’s not one of those democratic, ‘leave it up to the future’ sections.  And this presents some issues which need thinking through.

Should absolutely anybody be permitted to stand for parliament?

If we are being radically democratic, the answer should be yes.  The genius of the electorate will decide for itself whether a person is suitable for the highest office in Australia, invested with phenomenal legislative power and a platform to spout all kinds of insane theories about climate change, Muslims, and UN plots for one world government.  In a sense, isn’t it the right of every voter in Australia to express their democratic will however they want without the fetters of a bunch of old white guys from the 1890s?

On the other hand, maybe you might want a few safeguards to limit corruption.  Maybe you might want to exclude undischarged bankrupts — people who might use their office to resolve their financial problems.  Maybe you might want to exclude people who have a financial interest in particular arrangements with the Commonwealth — people who might use their office to push public funds into their back pocket.  Maybe you might want to exclude criminals — people who might not be of sufficiently good character from standing legislating for everybody.  And maybe you might want to exclude people who have allegiances to foreign countries — people who might have an interest in legislating in the interests of another country.

Because — and here’s the kicker — even though individual electorates might be able to decide for themselves whom they want as a representative, people living in the electorate next door have to suffer their decision.  They get literally no say in that electorate’s decision, but they have to live under legislation influenced by that person.  It’s one of the reasons why I get red and nude about the Senate: why do I have to suffer some nong Senator from one of the failed States, elected by accident and who is thoroughly unfit for office?  Why aren’t there rules to prevent certain groups of people being foisted on the rest of us by rogue electorates?

And this is why we get to s 44.  As a society, we think that these categories of people might present a greater risk to the rest of us if we let a rogue electorate elect them.  Don’t get me wrong.  The individual people nominated and elected might be fine, but they present a risk as a category.

There are five groups of people who, under s 44, are ‘incapable of being chosen or of sitting as a senator or a member of the House of Representatives’:

 (i)  is under any acknowledgment 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 a citizen of a foreign power; or

(ii)  is attainted of treason, or has been convicted and is under sentence, or 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; or

(iii)  is an undischarged bankrupt or insolvent; or

(iv)  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; or

(v)  has any direct or indirect pecuniary interest in any agreement with the Public Service of the Commonwealth otherwise than as a member and in common with the other members of an incorporated company consisting of more than twenty-five persons.

This clause is not easy to interpret and there is a lot — a lot, a lot — of academic and legal debate about precisely where are the edges of this.  Until the 1990s, it seemed that citizens of the UK who were also citizens of Australia were able to be chosen and sit as a parliamentarian, but a case called Sue v Hill put an end to that.  The UK is now a foreign power (even despite s 34 above).  There has been a suggestion by a man living in a cupboard in an embassy that New Zealand isn’t a foreign power but… uh… it is.

The interesting one is the direct or indirect pecuniary interest in any agreement with the Public Service of the Commonwealth.  Even though they look a lot like ordinary English words, there’s some weird case law that suggested, for a while, that certain kinds of pecuniary interest were okay under certain circumstances.  I tried a few times to write a blog post about the case, but it’s just really, brain-meltingly technical.

The case against Gillespie is similarly technical.

This leads very nicely into my final point.  If a provision of the Constitution is so technical that it cannot be explained adequately to an ordinary member of the community, to what extent should it remain in the Constitution?  Isn’t the Constitution supposed to be an expression of our collective, ongoing agreement that this is the set of rules that we want to govern our legal system?  How can we engage the public in informed, constructive discussion about Constitutional reform if we can’t actually explain the Constitution?

Crazily enough, this question did come up in the Constitutional Conventions back in the 1890s.  But it came up with reference to s 128 of the Constitution, the section which tells us how referenda will work.  Sir Isaac Isaacs argued that if the Constitution was easy to change, the community would have more trust in it.  After all, if something was not working due to the inability of the drafters to foresee future needs, the community could adjust the Constitution so it would work to their current needs.

Isaacs lost that argument and now we’re stuck with a mechanism that is a very high hurdle.  But this debate about s 44 shows why he was probably right.  We have a community that simply cannot engage with the technical complexity of the provision: don’t we have an obligation to amend the Constitution so it does reflect contemporary understanding of who should be permitted to be a parliamentarian?

In case it isn’t obvious from the above, I actually think both ‘sides’ of the s 44(i) debate have a point.  If I were to vote in a referendum, I’d keep the foreign allegiance provision but amend (iv) and (v) so that they better reflected contemporary society (primary school teachers should be allowed to become parliamentarians, damnit).

But the bigger point for me — and, I think, the bigger point for the Australian electorate — is how we can engage the wider community in discussions about s 44 that are informed and constructive, and how we can make sure that the Constitution stays relevant and appropriate for our contemporary needs.

Author: Mark Fletcher

Mark Fletcher is a Canberra-based PhD student, writer, and policy wonk who writes about law, conservatism, atheism, and popular culture. Read his blog at OnlyTheSangfroid. He tweets at @ClothedVillainy

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