Most Australians ineligible for Parliament?

A few weeks ago, I commented adversely on challenges by the ALP to the eligibility of government minister David Gillespie to sit in Parliament, on the basis that he owned a block of shops one of which was leased to an Australia Post branch. Since then, we’ve seen the resignations from Parliament of Greens Senators Ludlum and Waters, and from Cabinet of Senator Canavan. Eligiblity of others remains in question. This has led me to change my view. Instead of trying to make the best of this disastrous system, we should do away with it by constitutional amendment. The only way to make this happen is to enforce the existing provisions in their full absurdity.

According to the ABC, 49 per cent of Australians were born overseas or had a parent born overseas. Add to that everyone employed in the public sector “an office of profit under the Crown”, or who does business with the Commonwealth, and it’s conceivable that a majority of Australians are ineligible to run for election to Parliament. And, while Antony Green thinks it unlikely that pensioners are ineligible, the report he quotes says “However, the meaning of the phrase is not absolutely clear and there are divergent views about its effect.” Speaking personally, although I’ve never seriously considered running for election, I’d also never considered the possibility that, as an academic and ARC Fellow, I’d be ineligible. But it appears that I may be.

Of course, there are steps that can be taken to fix this problem for any individal, but we need a systemic solution.

Obviously, the authors of our Constitution never intended any of this. At the time, there was no separate Australian citizenship, so any British subjec was eligible, which would have solved the problems faced by Ludlum and Waters. And the public sector was much smaller, so the other constraints weren’t nearly as problematic. Age pensions hadn’t been introduced, so the provision against pensioners was meant to exclude personal pensions, granted by the monarch direclty

On the other hand, while the framers guarded against the sources of corruption evident to them, they never anticipated the problems we have now. It’s OK for political parties to be in hock to foreign donors, for someone who has renounced his Australian citizenship to control most of our media, and for careerist politicians to start out as hack staffers, give out favors in office, and cash them out afterwards. But if you don’t do the paperwork to cancel potential citizenship in a country you’ve never seen, you’re out on your ear.

At this point, the situation is so bad that “worse is better”. The best outcome would be for another dozen or two members of Parliament, from all parties, to be thrown out. Then we might get the unanimous support we would need to fix the absurdities of Section 44. Of course, that wouldn’t do anything about the real problems, but at least we would be free of this anti-democratic nonsense.

76 thoughts on “Most Australians ineligible for Parliament?

  1. @J.H.
    Indigenous means the original inhabitants, not the more recent arrivals (for a legal perspective refer to Mabo and Native Title Act).

  2. J-D @45: “The thought that goes through my mind that nobody seems to have touched on is that I suspect many Liberals and Nationals will be resistant to the idea of any sort of change to the Constitutional provisions because they fear that once you change the Constitution you will give people the idea that it can be changed again, and they wouldn’t want that.”

    I share this suspicion. It obliquely reminds me of a thought I had during the Republic referendum debate nearly 20 years ago, which was that the Manichaean intensity with which the idea of a directly elected symbolic head of state was attacked was out of all proportion to the actual difficulties or potential consequences of Australia doing something which the Irish, the Finns and the Austrians have all been able to do without mishap. The conclusion I came to was that the underlying source of the fierceness of the resistance had less to do with the specific issue of directly electing a symbolic head of state than it did with the fear that if the little people were allowed to vote directly on a little issue they might develop an appetite for voting and otherwise participating in decisions on big issues.

  3. Politicians who live in grass houses shouldn’t stow thrones. Fear of Kiwis in green shirts has pissed off pollies who possessed a passing knowledge of section 44. See that bit about having the right to citizenship of some other power? Many who have a parent from the EU might now be searching their passport. Great stuff or stuff-up.

  4. David Allen :
    Funny that we’re not hearing from the “law’n’order” crowd on this. The constitution is the most important set of laws in the country. If you ignore them them then why abide by anything? Does anything matter in this degenerate country anymore?

    See the construction “law and order”. See that it’s not, simply, “law”; see that from the perspective of a “law-and-order type” obedience to the law is either not sufficient or not necessary.

    [A person’s words reflect all their thoughts, including thoughts they are unaware of or trying to conceal.]

  5. J.H. :
    @hc
    Anyone born in Australia would be Indigenous…. It is what the word means.

    indigenous = original inhabitant

    native = born and matured in situ inhabitant.

    as my neighbors are indigenous ancestry and native to this place and i am native only.

  6. Darryl Rosin :
    May, as you describe it, you friend ‘acquired’ citizenship. A child born to Dutch parents in the USA would be a dual Dutch-American citizen at birth. They would not be ‘acquiring’ any citizenship. (Anyone born on American soil is an American citizen at birth) Perhaps relevant to your story is the fact that children born to Australian parents overseas are not Australian citizens at birth. Their citizenship must be applied for.

    but then the Dutch would not recognise and accept that the duality exists and the Dutch citizenship, in their eyes, would not exist?

  7. One question that can be asked is why so many “new” Australians become MPs? What is up with the 50% native borne in the population? One would think that living here longer term provides some comparative knowledge and networking advantages over recent arrivals.

    Ditto for VCs at Australian Universities and our CEOs. Why are there, for example, so many Brits? Do we need the more cultivated and urbane Brits to keep the riff-raff, native-born Aussies firmly in line?

  8. @hc

    Refer to my earlier comment dated 28 July at 07.50 – it may give you a clue as to the answer to your question.

  9. @Moz of Yarramulla

    “That has amusing implications for the founding legislators, since as I’m sure you know when the country was started there were no people who had been born here.”

    Apart from an aggregate of millions over 65,000-85,000 years – with legal systems predatory the Constitution by a similar period. I know what you meant, but please, a little precision.

  10. “but then the Dutch would not recognise and accept that the duality exists and the Dutch citizenship, in their eyes, would not exist?”

    May, my understanding is that Dutch law provides that Dutch citizens living overseas for an extended period of time may lose their Dutch citizenship if and only if they hold other citizenship. This implies a recognition in Dutch law that there exist Dutch nationals with multiple citizenship.

    Whenever you hear “country X doesn’t allow dual citizens” it’s a pretty safe bet that means country X has restrictions on the *acquisition* of dual citizenship. Which, incidentally, was the case in Australian until 2002 when the law was changed to permit Rupert Murdoch to become an American citizen without losing his Au citizenship.American citizen

  11. Dan :
    I know what you meant, but please, a little precision.

    I was being precise. I could have said “no Australian born citizens” but that would let our racist friends agree with me too easily. Until we resolve that particular question I think it’s worth bringing it every time. Was it a war of occupation (terror enormous) or moving into a land without people (terra nullius). In some ways voting rights are the least of it, in other ways they’re an important symbol of the symbolic progress we’ve made.

  12. Up front, IMO, all of s44 should go. Initially, I’d considered leaving the crime exclusion in but really, it’s not worth it. If the parliament wants to exclude those who have committed certain classes of crime or any crime then it can certainly elect to do so. As Luke says above, voters should decide who is fit to represent or not represent them.

    For a long time I realised that a substantial proportion, probably a majority, of the folk I know at least reasonably well, were excluded from standing for parliament under S44. Many are teachers of course but some like me are excluded on another ground — being at least in part of foreign descent. Like Senator Canavan, I have an Italian parent, and in consequence hold Iralian citizenship. I have an (expired) Italian passport. I hadn’t thought about it much until recently, because I don’t think of myself as Italian and pay only passing attention to its politics.

    I was much more Italian as a child, because in those days you copped racial abuse every day for it. I had little good alternative, existentially, to embracing it and making it a virtue, until I was old enough to read History and to begin to unpack the poison of patriotism. Animus towards Italians eased greatly during the 80s and by the late 80s it was borderline chic to be of Italian descent. Other identities though — Aboriginal, Asian, Muslim — were still derogated. By the time I was assigned to my current school, I was for all intents and purposes ‘white’ so that when I reprimanded some errant Year 9 student of Italian descent in my first week there, his reflexive appeal was to cry animus towards ‘w*gs’. I laughed inwardly at the absurdity, and pointed out to him, in Italian, the absurdity of the claim.

    I have long mused at the possibility of standing for parliament after I retire, but it seems that even then, if I wish to, I will be obliged to cast off a part of my formative experience — resisting conformity to the racist mores of the 1960s. It is not too much to say that had I been allowed then to simply join the mass, I might never have been moved to reflect on what it meant to be human. So as much as I resented the abuse and came to reject patriotism, I feel offended that some perverse xenophobic provision uttered by folk who were racist on multiple grounds should demand that I deny part of who I am as part of exercising citizenship. How dare they?

    Junk it all, I say. Let the voter decide. If someone thinks being of Italian descent ought to exclude me, then let it be on them. It’s probably no worse than being a teacher.

  13. @Fran Barlow

    “I have long mused at the possibility of standing for parliament after I retire”

    If, as you appear to be, old enough to be on the old teachers’ pension scheme you might be ruled out for that reason. Of course you can always stand for parliament. The problem only arises in practice if you win.

  14. I started teaching too late for the old scheme (1988) , so I’m on the middle one. IAE, i am rubbed out on ethnic grounds, so it’s moot.

    I am not sure if super rubs you out though, even if it’s an annuity, as technically, you don’t have an ‘office’ of profit and your super us regarded as yours rather than a gift of the department. So far, nobody has tested that one, AIUI.

  15. @Fran Barlow

    You might well be right but nothing is settled under the High Court decides. Hopefully in the Canavan case the HC won’t confine itself to the facts in that case and will lay down some law that can be applied to everyone.

  16. @Smith

    Just as a point, but the “pensions” exclusion only applies to “any pension payable during the pleasure of the Crown”; statutory or contractualy-established pensions probably don’t fall under this, if the government doesn’t have the option of not paying.

    @Fran: there’s no general “crime” exclusion; it only applies to people Actually In Jail or potentially so, and even then it’s only if it’s for more than a year. “Has been convicted and is under sentence“; at the expiry of the term of sentence you’re free and clear.

  17. The other thing that is odd about s44 is that it breaks an important principle of representative governance — that if you’re qualified to vote, you’re qualified to stand. After all, the MPs are supposed in some broad sense to share this attribute with the masses.

    But if they really believe that those of us who through an accident of birth – not even necessarily our own — are an incipiently existential threat to good governance, they we ought to be barred from voting too. Really, we are tainting the vote. That goes for us public servants too.

    In NSW you can’t stand for Council if you’re a property developer or have close connections with them. That seems to me a reasonable exception as there is a clear conflict of interest and the means to enliven the harm. Were it practicable, I’d exclude them from voting as well. It probably isn’t though but as a matter of principle, one ought to be consistent.

  18. Nobody will see this, but I am wondering whether it is mandatory of referenda questions to posed on a Yes/No basis. Why should not the various sub sections of S.44 be posed with a series of possible options which could then be voted in accordance to voters preferences, as they do with candidatates for House of Reps Divisions. If possible, this might make constitutional change more possible and engaging.

  19. @wmmbb

    In principle, it’s an excellent idea, but I doubt it would get past the wording of s128. You’d probably need to change that expressly first — possibly at the same referendum.

  20. Thanks Fran. I have to admit I have not looked at the Constitution for years. However, s.128 does say:”When the proposed law (for alteration) is submitted to the electors, the vote shall be taken in such a manner as the Parliament prescribes.” I think you are right, but it seems at least possible, and would be subject to the ruling of the High Court, who in the light of judgments in relation to s.44 – the difference between Roman Law and Common Law in relation to citizenship, may look favourably on such proposal. That presupposes Parliament would be of that mind.

  21. Ah fair enough then. Still, the parliament certainly has the power to address that.

    + It’s in the constitution, so it’d need a referendum to change,
    + there are I think genuine practical problems with serving simultaneously as a parliamentarian and a prisoner simultaneously that should probably be resolved in some way before we move forward.

    Some of the constitution is boilerplate, but really not an awful lot; almost all of it was included as a result of careful consideration of alternatives, problems-to-be-averted, etc. There’s a fair case to be made that the problems the citizenship provisions were meant to avert are no longer issues or are outweighed by worse problems, but for the prisoner clauses making that sort of case is I think substantially harder.

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