Section 44 of the Constitution is not the founders’ best work
Some lasting good could come of the citizenship crisis, if the government and Opposition heed today’s call for a referendum to repeal or modify the dreaded section 44 of the Australian Constitution, which has wreaked havoc in the current parliament. The call comes via the unanimous report of the Joint Standing Committee on Electoral Matters (JSCEM), and the central issue is not as dumb as it sounds. The parliamentary gene pool is already too shallow, and section 44 is part of the problem. It’s not only that dual citizens may find themselves ineligible, although in our increasingly multicultural society that’s bad enough. So too may any public official, including nurses, firefighters and teachers; anyone on the board of a charity that receives government funds; or any member of the Stolen Generations who has no record of their parents’ birth. It’s a problem that needs fixing, and, frankly, it’s less boring than I thought.
The report’s foreword explains how the Constitution determines who can nominate for election: section 34 stipulates required qualifications, including citizenship, age and an entitlement to vote. Then there are five criteria for disqualification in section 44 – loosely, anyone who holds foreign citizenship, a criminal conviction, undischarged bankruptcy, an office of profit under the Crown or a pecuniary interest in an agreement with the Commonwealth. We’ve been over these endlessly in the past year.
The JSCEM report notes, however: “While public commentary has focussed on whether dual citizens should be allowed to serve in our national Parliament, the consequence of the High Court’s recent rulings is that many ordinary Australians are now ineligible to stand for election … this debate reaches far beyond the focus of public commentary to date, that members of the 45th Parliament ‘should have got their paperwork right’.”
As The Guardian reports, the committee recommended that the government prepare a referendum question to either repeal all the disqualifications for standing for parliament in section 44, or to give parliament the power to set the disqualifications itself. But the committee acknowledged that a referendum “will not be positively received by Australians and the outcome … is uncertain”.
In his response, the special minister of state, Mathias Cormann, said the government would consider the report but is “not inclined to pursue a referendum to change section 44 of the Constitution at this time”. There would not be time to make the case for change before the next general election, Cormann said, which is due within 12 months, let alone ahead of the five looming super Saturday by-elections. Instead, the government will extend the new citizenship registry requirements to all candidates who nominate for election to the federal parliament, not just successful candidates.
Having invested more than six years in the Australian Republic Movement and the losing referendum of 1999, the prime minister often describes himself an expert on the difficulty of constitutional change. He is now spooked. As a young lawyer, Turnbull was no fan of the Australian Constitution: writing for Nation Review during the supply crisis of 1975, he described it as a “tortured piece of late-Victorian prose”, full of “ill-conceived anachronisms”, the first among which was the Senate.
Having gone back over the history, today’s JSCEM report makes the point that there is no evidence that our founders intended section 44 to apply to those seeking to nominate as well as those elected to parliament. The report continues, observing that the current section 44 “was drafted in haste, in the last day of the final session of the Constitutional Convention in 1898, and ‘accepted out of weariness’. If this is the case, we, as a nation, should not be unwilling to engage in a debate to challenge its operation to reflect the values of a modern Australia.”
Too right. After the success of last year’s plebiscite on same-sex marriage, actor Rhys Muldoon tweeted: “Hey parliament, ask us some other stuff. 1. Treaty for indigenous Australians.” The Americans spice up their politics with endless, sometimes narrow, often contradictory propositions. So might we. Why don’t we put the Voice to Parliament up for a vote, and put more plebiscites and referenda to the people in general? Every election provides an opportunity.
since this morning
Treasurer Scott Morrison has rallied behind Liberal backbencher Ann Sudmalis, who is at risk of losing preselection for her south-coast NSW seat of Gilmore, claiming that she saved the Liberal Party from losing government at the last election. Meanwhile, in this morning’s The Australian, columnist Niki Savva writes [$] that the Liberal Party’s de-selection of Jane Prentice is “enough to make you back measures to force the blokes to
concentrate on finding capable women”.
The attorney-general, Christian Porter, says [$] some Labor MPs are yet to provide evidence that their dual citizenship has been renounced, and that “curiosities” remain over the case of Labor’s Anne Aly. The Australian reported that Aly had accepted more than $3000 in flights – including a trip to Cairo in July – from the Egyptian Embassy, which last week issued a statement clearing her of being a foreign citizen.
The Australian Competition and Consumer Commission has raised [$] preliminary competition concerns about Transurban’s bid for a majority stake in the WestConnex road project in Sydney, saying it could result in a worse deal for motorists.
in case you missed it
The live sheep export trade will face tougher standards and penalties under “serious and meaningful” changes announced by the Turnbull government, which has stopped short of banning the industry following shocking revelations of death and suffering on the voyages to the Middle East.
The Australian reports [$] that the agency running the $22 billion National Disability Insurance Scheme is spending up to $10 million a year on barristers and legal services in a bid to arrest the dramatic rise in the number of people successfully appealing for more money in their support packages or trying to get into the scheme.
Paddy Manning is a contributing editor (politics) at The Monthly. He is a writer and journalist who has worked for the ABC, Fairfax, Crikey and The Australian. He is also the author of three books, including Boganaire: The rise and fall of Nathan Tinkler.
Some lasting good could come of the citizenship crisis, if the government and Opposition heed today’s call for a referendum to repeal or modify the dreaded section 44 of the Australian Constitution, which has wreaked havoc in the current parliament. The call comes via the unanimous report of the Joint Standing Committee on Electoral Matters (JSCEM), and the central issue is not as dumb as it sounds. The parliamentary gene pool is already too shallow, and section 44 is part of the problem. It’s not only that dual citizens may find themselves ineligible, although in our increasingly multicultural society that’s bad enough. So too may any public official, including nurses, firefighters and teachers; anyone on the board of a charity that receives...