29 November 2017

Joint Standing Committee on Electoral Matters to examine operation of Section 44

The Joint Standing Committee on Electoral Matters has commenced an inquiry into the operation of Section 44 of the Australian Constitution following a referral from the Prime Minister.

Committee Chair Senator Linda Reynolds said the committee acknowledged the Prime Minister’s concern that Australians must be assured all members of the Australian Parliament are constitutionally eligible to serve and must also have confidence in the processes leading to their election.

“Recent High Court decisions have resulted in a number of serving members and senators being disqualified,” Senator Reynolds said.

“Many of these cases have involved the application of Section 44(i) of the Australian Constitution to a member or senator who is also a citizen of another country, often without their knowledge, and as a consequence of a foreign law, conferring that foreign citizenship on them by reason of their ancestry.

“Other senators, members and candidates have been disqualified or had their eligibility questioned due to the application of different parts of Section 44, specifically Section 44(iv) which excludes candidates who hold an ‘office of profit under the Crown,’ and Section44(v) which excludes candidates with an ‘agreement with the Public Service of the Commonwealth.’”

The terms of reference are:

• How electoral laws and the administration thereof could be improved to minimise the risk of candidates being found ineligible pursuant to Section 44(i) (this could involve, among other matters, a more comprehensive questionnaire prior to nominations, or assistance in swiftly renouncing foreign citizenship);

• Whether the Parliament is able to legislate to make the operation of Section 44(i) more certain and predictable (for example, by providing a standard procedure for renunciation of foreign citizenship, or by altering procedures for challenging a parliamentarian’s qualifications in the Court of Disputed Returns);

• Whether the Parliament should seek to amend Section 44(i) (for example, to provide than an Australian citizen born in Australia is not disqualified by reason of a foreign citizenship by descent unless they have acknowledged, accepted or acquiesced in it);

• Whether any action of the kind of contemplated above should be taken in relation to any of the other paragraphs of section 44 of the Constitution, in particular Sections 44(iv) and 44(v); and

• Any related matters.

The committee has been requested to report to Parliament with respect to Section 44(i) by 23 March 2018, and with respect to any other provisions of Section 44 by 30 June 2018.

Submissions opened this morning and will close on 9 February 2018.

A public hearing will be held in December 2017.

To lodge a submission or for more information visit the Committee website.

Media enquiries:

Media Contact: Amy Blom (08) 9477 5411, 0431 685 372 or amy.blom@aph.gov.au