Section 44: Why it's still an issue

By Gian Ellis-Gannell


Although our school year is winding down after the year 12 trials and year 11 preliminaries, it is important that we keep a wide, informed worldview; whether this be the Amazon Rainforest fires that are still burning, or the flaws that permeate our very own constitution.


As a bit of background: Our constitution first took effect on 1 January 1901, the date of Australia's federation. Containing many sections and guidelines on the legal framework for how Australia is governed, it can only be changed by referendum. It has been somewhat updated in the past, however this is difficult to do due to numerous reasons including the high cost of holding a nation wide vote. The result of this is that many sections are convoluted, confusing, and simply out of date .

One such example is Section 44; the cause of the recent dual-citizenship scandal in which many MP's were forced to resign simple for being 'eligible' to hold Passports of other Commonwealth countries. The trouble was, no one knew exactly what this meant.


The ambiguity of Section 44 in the Constitution regarding eligibility to hold a seat in or be a candidate for Federal parliament has become a major disturbance in Australia’s governmental system; affecting Australians greatly through flow on changes in our political climate, as well as wasting time in Parliament that could otherwise be spent discussing beneficial bills for the rest of our population.


Specifically, the issue residse in that language within this section is unclear as to what ‘allegiance, obedience, or adherence to a foreign power’ (i) constitutes. Due to recent parliamentary motions, more than a dozen ministers have been forced to resign from their seats. They have been required to take action to refute claims of their disqualification from parliament based on Section 44 (i) and were only allowed to contest a by-election and win back their seat if the dispute had been resolved to the satisfaction of the High Court by that time.


confusingly, eligibility for foreign citizenship has been considered ‘allegiance’. However, due to the high number of immigrants in Australia, and our nations’ history as a previously British colony, more than 49% percent of Australians have UK ancestry, making many eligible for British passports. Even if no attempt has been made to apply for dual citizenship with the United Kingdom, the High Court ruled that unless eligibility to become a British citizen has been officially renounced, and steps have been taken to deny ‘foreign citizenship’, then the fact that they were ‘eligible’ made them ‘ineligible’ to be a parliamentarian.

Those in parliament effected by the ruling are majorly eligible for citizenship in other Commonwealth Countries, mostly the United Kingdom. Many had never even considered that they may hold allegiance to foreign powers under this definition, as they were not considered foreign powers as Commonwealth Countries, and they themselves were born in Australia. Such a decision is in itself highly problematic, as prior to 1987, Australian citizens were described in law as ‘British Subjects’. Up until recently, no one would have batted an eyelid at an MP holding such a citizenship


Regarding the effect of this on Australians in 2019, as parliamentarians or not, when a minister is disqualified, a by-election must take place for their seat. These by-elections are expensive and cost 'tax-payers money’. Considering that another member has to be proposed by the party and put forward as a candidate to the electorate, only for the original sitting member to have their dispute possibly resolved by the High Court and become re-elected soon after, it is a waste of funds that could be otherwise spent on public works.

Additionally, the balance of power in Australian Parliament may be held by as little as a single seat. This by-election can disrupt the balance of power and see the opposition take control of the lower house. Although we have been saved from this fate so far, our system has become volatile.


Yet, no amendments have been made. The time in parliament that debates around this topic have consumed must also be considered a waste of opportunity, as numerous bills that could have made positive change have not yet seen the light of day. Reforms that could have been made to improve our nation have instead been taken up by citizenship debates which were primarily concerned with British eligibility, despite that Australia is a constitutional monarchy which recognizes the Queen as the head of state.


In regard to steps that have been taken to rectify the issue, both the Liberal and Labour parties now state that they maintain a ‘citizenship register’ or party members and their possible foreign citizenships (or hopefully lack thereof). However, despite Prime Minister Turnbull’s announcement in 2018 that all MPs would be asked for a declaration that they were not disqualified by reason of holding a foreign citizenship, no action was taken as a result, and as such has appeared to be an empty gesture.


Therefore, Section 44 has only been utilised to disqualify those who discovered that they were eligible for citizenship in another nation and were honest enough to resign, or who had a parliamentary majority organised to refer their case to the High Court if another MP suspected their ineligibility to hold a seat in Parliament. The original intention of the argument was to prevent a conflict of interests- but how can this be possible if MP's don't even know of their 'interests' in the countries of their grandparents.


There has recently been the third multiparty parliamentary committee to investigate the issue of Section 44 being unfit for its original purpose of maintaining national security and its unclear language. This committee proposed a constitutional amendment to put the determination of disqualifications into the decision-making powers of parliament rather than the High Court. However, PM Turnbull rejected this proposal before the committee had even officially proposed it, and it has not been put forward again under PM Morrisons' government since.


In order for the issue of ambiguity and outdatedness in Section 44 of the constitution to be resolved, there need to be an amendment which not only make the definitions of particularly section (i) clearer, but a recognition and assessment of if Australia’s multicultural society can be truly represented in Parliament whilst maintaining security.

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