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. Quite right John. Reductio ad absurdum. Suppose Congress, smitten with love for OZ, granted US citizenship to all Australians. No Australian, thus entitled, would be eligible to stand for, and sit, in Federal Parliament (states and territories are another matter)! Australian public opinion seems against representation by dual citizens. By all means amend s44(i).

  2. While it is legal to be a dual citizen (dept of immigration and border protection) there exists a difference of opinion between the Crown at state and federal levels as to who is eligible to stand in their respective parliaments.

    One solution offered is to treat it a potential source for conflict of interest, much like pecuniary interest,
    and to maintain a register.

    Nevertheless, there remain considerable difficulties with s 44(i), especially in relation to unknown foreign citizenship. The desirable course, as outlined earlier, is to substitute for this paragraph a provision which adopts a two-pronged approach:

    (i) All candidates must declare in their form of nomination any foreign allegiance of which they are aware; and

    (ii) Any person who, after nominating for election, acknowledges in any way an allegiance to a foreign power, is incapable of being chosen or of sitting as a member

    http://epublications.bond.edu.au/cgi/viewcontent.cgi?article=1170&context=blr

  3. I like that solution.

    I am frustrated that once again the ethical people are crippled by their own need to do what’s right, while others are not so constrained.

  4. Yes, I think that it will take such a train wreck to concentrate our major parties’ minds on reaching broad agreement on amending s44. Even then, if the calibre of discussion on Murdoch press comments thread is anything to go by, there is a reservoir of xenophobic idiocy out there that an unscrupulous populist could appeal to in an attempt to frustrate a referendum on reforming s44.

  5. Good luck getting a referendum passed where the question is whether foreigners should be eligible to sit in the federal parliament, even with bi-partisan support. It’s about as likely as widespread support for legalised pederasty. The major parties, or our political institutions generally, have never been less respected and less trusted. Such a referendum would be a gift to One Nation, which is why it will never happen.

    The unsatisfactory solution, at least on citizenship, is that anyone running for Parliament will have to do some research and if there is even a whiff of possibility of dual citizenship make an effort to renounce that citizenship. Remember the HC has already said that they all they need to do is make the effort.

    On whether university professors are employees of the Commonwealth, it’s OK. The HC, in a different context, has said that they are not. Apparently there is an important distinction between being employed by the Commonwealth and being funded by the Commonwealth.

  6. Smith :
    Remember the HC has already said that they all they need to do is make the effort… The HC, in a different context, has said that they are not.

    Damn activist judges, overruling the Will of The People. Shouldn’t be allow… wait, they agree with Great Lord Murdoch? In that case, go ahead, oh great and wise arbiters of all that is good.

  7. Smith @7, the question is whether all Australians should be eligible to run for and sit in the Federal Parliament, or whether many Australians should be excluded from those rights because of decisions made by foreigners in London, Rome, Dublin, Athens, Moscow, etc.

    Also, until the High Court rules on the final bit of Section 44(1), we don’t know whether, or to what extent, your “unsatisfactory solution” is a solution at all.

  8. Given the happy state of foreign relations with our neighbours in the Pacific, and their often limited democracies (which we exploit to our advantage when that suits us. Nauru, PNG {cough}), it’s not beyond possibility that one of those could impose citizenship on members of parliament that offend them.

    Can you imagine the entertainment value if our Minister for refugee matters was overseas negotiating and said “foreign aid doesn’t have to be given” and they responded “we could bestow the gift of citizenship on you. Right now”.

  9. wasn’t there something legislated after the last federal election to the effect of limiting individuals eligibility to stand?

    it got through because the greens OKed it?

    as far as i remember the immediate result of that election, as well as a big fright to the (kick and scratch coalition(now, now, may)), the number of candidates made the passing of preferences too slow.

    why that was a problem escaped me, after all, the electoral commission does the work in front of it regardless of the bleatings of the breathlessly urgent commercial news.

    nothing was done about campaign funding such as inequitibility and foreign sources.

  10. Or toss the whole lot of them and start from scratch…no parties allowed, only independent candidates.

  11. @Catriona Thoolen

    I don’t see the relevance of your comment. This has nothing to do with party politics but everything to do with a part of the constitution that in the present day is not fit for purpose.

  12. If a parliamentarian is a member of a bloc-voting party, isn’t the real question whether the party, not the member, owes allegiance to a foreign power?

  13. Alphonse :
    If a parliamentarian is a member of a bloc-voting party, isn’t the real question whether the party, not the member, owes allegiance to a foreign power?

    hmmm.

    how about public servant heads of departments?

    wandering into conspiracy territory here, cos lets face it, religions also definitely have form.

  14. What is interesting is that one doesn’t have to be a citizen of another country to be barred from standing for elected office, you just need to be “entitled” to be a citizen of another country. So in the present case it doesn’t matter whether his mother informed him or not because his grandparents heritage conferred the ‘entitlement’. The whole situation is absurd and there needs to be a change to the constitution to bring into line with Australia’s present reality as a multicultural nation.

  15. Clearly, the minority judgement of the High Court is far superior. The notion that foreign law should in most cases be controlling of whether an Australian is eligible for office is wrong. Either taking out the citizenship ceremony which now has a pledge to Australia and its values or writing a nasty letter to the relevant ambassador should be more than enough to renounce your allegiance.

    One senator had to spend $25,000 in legal fees both here and in Iran to renounce his citizenship.

  16. If the public perceive a referendum as a chance to give the middle finger to the burning tyre heap that is the Australian political establishment – and they would do – you can bet on a spectacularly resounding No.

  17. in Holland if you gain citizenship in another state you lose your Dutch citizenship.

    they don’t do dual.

    i kinda like that, the current problem wouldn’t even arise.

    but it could get a problematic if the country renounced refused renunciation and a person found themselves in the position of saying “i no longer accept citizenship of state A because i am a citizen of state B”.

    and state A sez “that’s what you think”.

    (i’m glad i’m not a lawyer)

  18. Hi John,

    I think the framers of the Constitution absolutely intended the consequences we are seeing play out today. There are of course two elements you have referred to (both in s44 of the Constitution). One is the ‘foreign allegiance’ exclusion, the other is the ‘office of profit under the Crown’ exclusion. Both were addressed by the High Court in Sykes v Cleary (which you can find at the link at the bottom of this post), and in a few cases since.

    In relation to the first – even if 49% of people were born overseas (and presumably may therefore have some entitlement to dual or alternative citizenship), that still leaves 51% of us who are stuck here, with no alternative nation state to depend upon (economically, politically, or militarily) both in times of crisis, and for important policy matters (including sensitive matters of national security or economic policy). I am quite comfortable with the idea that those who make laws and policy decisions for the rest of us (including in times of conflict) should not have the comfort of a ‘back-up’ citizenship, should things not turn out for Australia as well as one could hope.

    Further, there are obvious conflicts of interest in allowing Ministers of one State to negotiate trade deals/aid deals/cross-border tax treaties/subsidies etc with another State with whom they alone (but not the majority of their fellow Australians) share citizenship rights. Your comment that “It’s OK for political parties to be in hock to foreign donors” is an argument for tightening party donation rules, not for relaxing constraints on eligibility to run for Parliament.

    Also – it’s not right to say that another State can ‘force’ members of Parliament to resign, by making them citizens. All you need to do is take ‘reasonable steps’ to renounce your dual citizenship. Some states make it impossible to give up citizenship, so as long as you’ve done your best that will probably be enough (again, the facts of each case will change – it will be interesting to see how Canavan’s argument on this pans out, if it gets that far).

    In relation to the second ground – you are right that this excludes quite a number of people, and possibly even yourself, from running for Parliament, while working for government institutions. Sykes v Cleary concerned a teacher with the Education Department of Victoria who had gone on ‘long leave without pay’, which was not sufficient to escape s 44. As for the rationale of the exclusion, at [18] Deane J (albeit in dissent) said:

    “it is undesirable that a person be subjected to the possibly conflicting responsibilities and loyalties and the potential for abuse of power or opportunity which may be involved in, or flow from, concurrent membership of the national Parliament and the holding of an office of profit under the Crown. Implicit in it is a perception of the need to preserve the freedom and independence of the Parliament and to limit the control or influence of the executive government …”

    In short, if you are making decisions regarding Australia Post (its budget, what it can/can’t spend money on, whether it should own land, or lease it, and how much to pay for it etc), and you are also a Landlord for Australia Post, then I think taxpayers can legitimately complain you are conflicted in discharging your parliamentary duties. You only need to look at Trump (who is presently effectively leasing the old Washington Post office to himself) to see why such restrictions are needed (although that is a relatively extreme example, it is a clear illustration of what is sought to be avoided).

    Obviously some cases will be clearer than others, but I don’t think the principles themselves are problematic, and I think generally should be quite strictly enforced. It’s not as if people run for Parliament ‘on a whim’, or that the restrictions in s44 are particularly onerous – Abbott gave up his UK citizenship (probably) with a simple letter or two, and one can only imagine that millions of US citizens now wish they had tighter restrictions over whether members of the executive could hold an ‘office of profit’ (no matter how indirect) under the Government.

    Anyway, just my two cents. The exclusions aren’t exactly ‘fine print’ (they’ve been in the Constitution for over a century) and if you or your political party can’t get it right before you run then you probably shouldn’t be in Parliament!!

    http://www.austlii.edu.au/au/cases/cth/HCA/1992/60.html

  19. I support JG’s comments. There are plenty of choices for Parliament even if dual citizens are excluded and I would prefer out legislators to have only Australian citizenship. Indeed I would ideally strengthen (not weaken) the existing Section 44 and require that Parliamentarians be Australian born. Having Parliamentarians who grow up in Australia and who appreciate our distinctive physical environment and national traits is a virtue.

    The left of politics trivialises the issue of being an Australian and regards promotion of the value of this as an absurd nationalism. I don’t at all. When I look at the Asia Pacific region Australia and New Zealand are the standout countries for democracy, the quality of their legal systems and the extent of multicultural tolerance. Globally I think our only competitors might be Canada and the Scandinavian countries – pretty good competitive democracies. We are a distinctive nation – not international common property – and it makes sense for our legislators to reflect this.

  20. @JG That’s a comprehensive reply JG.

    To clarify, in Australia the duties of the Crown are shared between State and Federal govts however this particular requirement regarding citizenship only applies to the Federal govt.

  21. In NSW to work for the govt you are required to be a citizen for permanent positions but not required for casual. And with outsourcing who knows?

  22. “in Holland if you gain citizenship in another state you lose your Dutch citizenship.
    they don’t do dual.”

    The key term there is “gain”. Dual citizenship is perfectly fine in Dutch law if you are *born* with it. And I don’t believe a Dutch dual citizen is prohibited from being elected to their Parliament.

    This issue keeps turning to a debate about the merits of acquiring dual citizenship while ignoring the problem of people born with dual citizenship. *Both* of which are entirely separate to the question of whether all AUSTRALIANS should be qualified to be elected to Parliament.

  23. “Indeed I would ideally strengthen (not weaken) the existing Section 44 and require that Parliamentarians be Australian born.”

    To be clear, HC, you would exclude from Parliament everyone not born in Australia, and anyone born in Australia with a parent from a jus sanguinis nation, without exception? You are not concerned by Article 25 of the international covenant on civil and political rights?

  24. No, ideally I would require that only citizens of Australia alone who were also born in Australia should be Parliamentarians. That will not happen so I would have to be satisfied with only the first part which is the current Section 44 – Parliamentarians in Australia should be citizens of Australia alone.

    At a minimum legislators in Australia should owe their allegiance to Australia alone – not also to China, not to Italy, Canada, the US or the UK. Now clear?

  25. Clearer, thank-you HC. I am trying to get an understanding of the diversity of views about citizenship and eligibility to be elected to Parliament. I am not on intimate terms with anyone with dual citizenship and I have not turned my mind to these questions before former Senators Dingbat and Nitwit resigned.

  26. @hc
    Can you point to a specific piece of legislation that you think might have been enacted/not enacted if your all Australian born parliament had been written into the constitution? Can you point to any evidence that would lead you to suppose there would be any substantive difference?

  27. Another absurdity is that foreign citizenship is not a bar to joining the federal public service and getting a top secret security clearance, higher than most MPs would be given. Also, I know of people who migrated from China in adulthood with top secret clearances in the Department of Defence. They’ve probably given up their Chinese citizenship, but so what? It just makes a mockery of preventing a lot of people from standing for Parliament, or making give up their dual citizenship unnecessarily, especially in the case of second generation Australian. I speak as a 4th/5th generation citizen.

  28. @hc

    This and your previous comment are frankly illogical and xenophobic. What you are suggesting is that people born overseas are in some way lessor citizens and less committed to Australia and its democratic values. This is a ridiculous and unsubstantiated assertion.

    Secondly, emigration to another country involves a great deal of risk and those that have emigrated to Australia ipso facto must have a great deal of determination to succeed.

    There is a lot of evidence (educational success, commercial success, over representation in professional positions etc) to indicate that migrants and their families make a substantial contribution to Australian society proportionately above that of locally born Australian. I suggest you take a good hard look at the ethnicity of the people graduating from our universities with top honours.

    Aren’t these exactly the sort of people we need in Parliament and government? Your suggestion that because of their cultural background people born overseas are less committed to the values of a modern democracy is actually quite offensive and to my admittedly meagre knowledge is not verified by any research. Even if it were true that people born overseas in countries with a less democratic tradition did not subscribe to the democratic values we hold dear (something I would dispute) does this also apply to the many migrants from the UK, Ireland, New Zealand and Europe?

    If you cannot see the absurdity of your position, Australian born or not, you would be the last person I would want representing me in Parliament.

  29. hc :
    No, ideally I would require that only citizens of Australia alone who were also born in Australia should be Parliamentarians.

    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.

    I would much prefer a requirement that all candidates are required to be fluent in a native language. And also in English. Making bilinguality a requirement would hopefully broaden the minds of the members, as well as keeping out the riff-raff.

  30. @hc

    This is a sound proposition but it does not go far enough. Only Indigenous people should be eligible to be members of the federal parliament. Everybody else is a Johnny-come-lately, a potential fifth columnist, whose loyalty to Australia is suspect.

  31. @Paul Norton

    I am so glad we’ve made it out of the 1980’s, musically.

    I’ve just been reading about a couple of Te Tiriti negotiations on Aotearoa and it does make me pine for the days when I lived in a country with a legal foundation worthy of the name. I’d love to see that here, rather than “I stole this, it’s mine”.

  32. 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?

  33. @Smith

    That was what I got from your comment. I suspect that Paul Norton responded as he did partly as a continuation of your approach.

  34. @Smith

    it doesn’t even work “merely” as a reducio ad absurdum argument. It is just silly. The suggestion was that, ideally, the Australian born be members of the Australian Parliament. That does not suggest that only indigenous Australians can be MPs. most of the Australian born living in Australia are not indigenous.

  35. @hc

    On the contrary, your argument for only Aussie-born MPs is

    “Having Parliamentarians who grow up in Australia and who appreciate our distinctive physical environment and national traits is a virtue.”

    Extending the argument, one could just as well argue “Having Parliamentarians who grow up in Australia and who had parents who grew up in Australia and who appreciate our distinctive physical environment and national traits is a virtue.” Surely (on your argument), if you had Australian-born parents you’d be more likely to have drummed into you our national traits than if your parents were migrants.

    Extending further, …”and who also had grandparents who grew up in Australia…”.

    We can extend all the way back to 26 January 1788. But this is a completely arbitrary stopping point, especially for your criterion of appreciating our distinctive physical environment. The only logical solution – at least on your argument – is with the original Australians, so only their descendants can sit in the Parliament.

  36. We really don’t need any of those rotten foreign infected MPs who can sell us out… we can produce plenty of homegrown ones quite capable of doing that thank you very much (Mark Vaile, Andrew Robb, Joel Fitzgibbon, Craig Emerson to name a few) [winks]

  37. Darryl Rosin :
    “in Holland if you gain citizenship in another state you lose your Dutch citizenship.
    they don’t do dual.”
    The key term there is “gain”. Dual citizenship is perfectly fine in Dutch law if you are *born* with it. And I don’t believe a Dutch dual citizen is prohibited from being elected to their Parliament.
    This issue keeps turning to a debate about the merits of acquiring dual citizenship while ignoring the problem of people born with dual citizenship. *Both* of which are entirely separate to the question of whether all AUSTRALIANS should be qualified to be elected to Parliament.

    are you sure about a Dutch person being able to keep Dutch citizenship on obtaining citizenship in another country?

    my comment about that was based on the experience of a person i know who was born in Holland and on obtaining Australian citizenship forfeited the Dutch citizenship.

    who when going to Holland to visit family had to obtain a visa as an Australian citizen.

    so as an Australian citizen could not stand(hypothetically) for election in Holland.

  38. hc :
    No, ideally I would require that only citizens of Australia alone who were also born in Australia should be Parliamentarians. That will not happen so I would have to be satisfied with only the first part which is the current Section 44 – Parliamentarians in Australia should be citizens of Australia alone.
    At a minimum legislators in Australia should owe their allegiance to Australia alone – not also to China, not to Italy, Canada, the US or the UK. Now clear?

    what happens if some one is born in Oz and leaves as a baby, not returning until an adult raised in a culture inimical to Australian (type?)culture?

  39. 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.

  40. I agree with John Quiggin, but would not have bothered posting this comment just to say that. 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.

  41. @may

    Indeed. Born in Australia to Islamist parents, leave Australia as a baby and raised among the Taliban in Afghsnistan, return to Australia as an adult, full of hateful ideology. On the hc criteria, you are in.

    Born in New Zealand to Australian parents, come to Australia as a baby, live your life as an Australian, renounce your NZ citizenship. On the hc criteria, you are out.

  42. “culture inimical to Australia”… I suggest that the USA counts, and like the UK as well. Vatican City definitely does, but I don’t think we’ve had that one crop up ever.

    The trick is to not elect them. I’m quite tempted by the absolutist opposite position on this: anyone, absolutely anyone at all, should be qualified to stand for election. If the voters choose that person, they’ve in. The end. We could call this “the voters decide”, with the current law and other opposite positions called “the current government gets to decide who is permitted to run against it”…

  43. The cases of Scott Ludlum and Larissa Waters are absurd (as may well be equally true in relation to Malcolm Roberts). I was attributing both the British and Australian interest in nationality and citizenship to the recent Indian Independence, but it seems the Canadians established their legislation in 1946. The notion of a foreign government has been reinterpreted from original meaning by the High Court. People who hold dual nationality with NZ and Canada (I imagine) are required to fulfill residency requirements before they can participate in elections. In the case of Australian in NZ they have to meet the same requirements as NZers. If I have this right (and how could I?), it would in practice mean that all Australians are dual nationals. The obvious point in regard to former senators Ludlam and especially Waters, they may qualify as nations but not as citizens and alliance and social conditioning is non-existant. A multi-cultural society should welcome diversity, a point that the majority decision of the High Court may have overlooked.

  44. @Moz of Yarramulla

    The paper that rog linked to at #2 mentions a case in which a

    “…challenge [was] brought under s44(i) to the election of a Roman Catholic to the House of Representatives in 1949. In Crittenden v Anderson, the respondent’s election was challenged on the basis that as a Roman Catholic, he was disqualified for being ‘under acknowledgment of adherence, obedience and/or allegiance to a foreign power’, namely, the Papal State. Noting its effect would be to disqualify all Roman Catholics from the Commonwealth Parliament, Fullagar J relied on s116 of the Commonwealth Constitution to reject the challenge on the basis that it amounted to a religious test which s116 prohibited as a ‘qualification for any office or public trust under the Commonwealth’.”

    I too am tempted by no-holds-barred passive suffrage (with very few exceptions, such as those currently in prison). Virtually all attempts to limit the rights of individuals to stand for election are fairly transparent efforts to strengthen the hand of some groups in society at the expense of other (usually already marginalised) groups; the nebulous notion of a shared national interest is waved about as misdirection, despite the fact that shared interests are rarely a focus for political decision-making. This is evidenced as much in this comments thread as it is in the above court case.

    Democracy already provides a method by which people can determine what sort of person will represent them—voting—and it’s a right that can be exercised without concomitantly denying the same right to others.

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