Nomination checklists and ineligibility

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Nominations for the federal election will close next Tuesday, April 23. This is the first full federal election since a massive number of federal MPs lost their seats in 2017 and 2018 due to ineligibility, mostly due to citizenship. We’d expect about 1000 people to run for the House of Representatives (my list already has over 700), and approximately 500-600 candidates will run for the Senate. All of these people will need to jump through these hoops to prove they are eligible, and may well end up not really knowing if they are.

Last Friday the Liberal Party announced that three of their Victorian candidates will be replaced because of potential incompatibility with section 44 of the constitution, making them potentially ineligible.

All three were contesting unwinnable seats in Melbourne, and thus had no chance of actually getting elected, but in the current political environment it seems like the party judged they couldn’t risk the possibility that these candidates’ potential ineligibility would become a media story.

This latest chapter in the section 44 saga clearly demonstrates that this clause will continue to be a problem, it can’t be resolved simply by ‘doing the paperwork’, and that the only solution is to amend the constitution.

It’s worth looking at the reasons why these three people have been forced out.

Helen Jackson, who was running for Cooper, was disendorsed because she is an employee of Australia Post, which they were concerned would be considered an office of profit under the crown. I’ll leave that issue to the side, although I think there are good reasons to think this clause should also be reined in.

Wills candidate Vaishali Ghosh is not an Indian citizen, but as someone with Indian ancestry he has rights to claim a long-term visa in India. Kate Oski, who was running for Lalor, may be able to claim Polish citizenship through her father.

Note that in neither case does the unfortunate ex-candidate actually possess the citizenship in question, let alone have used and benefited from it.

We don’t know how many other potential candidates in similar situations have been prevented from running because of similar uncertainty. If the Liberal Party isn’t willing to accept these candidates to run for unwinnable seats, how likely would they be to choose someone with these issues to actually run for a winnable seat.

We now have enough precedent to mostly know how British citizenship cases should be dealt with, but for other countries it can be far more confusing, and much easier to just pick someone with a neat and tidy family history.

Meanwhile the AEC’s nomination procedure has become far more arduous then it was previously, with the addition of a ‘qualification checklist’ (pages 7-16 of this Senate nomination form). This checklist was first used for the Super Saturday by-elections last year, but this is the first use of it at a full election.

The whole thing is massively over the top, asking for information about the citizenship and birthplace of your parents and grandparents plus spouses and ex-spouses. The questions for the other subclauses of section 44 are much simpler, but the citizenship questions are so complex because citizenship is such a complex matter, and it’s actually very hard to know who is or is not covered.

Some people may be naive enough to think that we resolved this issue of MPs with dual citizenship with the purge in the last parliament. That is very much not the case. There will continue to be candidates who are forced to withdraw or are damaged by speculation aobut their status, not to mention the number of potential candidates who we never know about because they don’t think they can prove their eligibility. I am sure there will be future cases of MPs who lose their jobs, despite the best efforts to “do the paperwork”.

The only solution is a referendum. We don’t need to completely remove the clause, but it could be clarified to just cover those who have a citizenship from a country they were born in, or a citizenship they have actively used, or we could change the rules so that the eligibility rules apply to someone sitting as an MP, not running as a candidate. Either of these fixes would ensure that people are free to run for election in this country, and will end the blatantly discriminatory nature of the current constitutional clause.

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12 COMMENTS

  1. Its crazy. As a nation, we have one of the highest percentage of foreign born citizens in the world. We are an immigrant country. What percentage of Australians likely to be ineligible to stand for federal office under the current S 44. clause? Could any data ninjas out there deduce a likely range?

  2. Rod Smith is in Wright for Fraser Anning’s Conservative National Party
    Regards
    Sandy Turner
    Conservative Independent for Blair

  3. Independent candidate for Bean – Dr James Christie -https://jamiechristie.com.au/candidate-bean-canberra/

  4. I wonder if major parties will try to get results thrown out by referring minor candidates for s44? In the Senate it can affect exclusion orders.

  5. If we ever do get the chance to amend the clause, why not make it as simple as possible?

    So what would be as simple as possible?

    I would say, make Australian citizenship a mandatory eligibility criterion, and provide that other eligibility criteria may be determined by law; or, to make it even simpler, leave out the first part of that. ‘The Parliament shall have power to make laws with respect to eligibility to be chosen as and to sit as a senator or a member of the House of Representatives.’

  6. That would be my personal preference but I do think it would be difficult to pass a referendum if it sounded like it gave the power to politicians to not put any restrictions on dual citizenships. So we should tackle the real problem, which is people holding citizenships they cannot get rid of, or don’t know for sure if they have, or don’t even know about, and also people being forced to renounce at the point of nomination instead of sensibly imposing it as a requirement before you can sit in parliament.

  7. http://www.tallyroom.com.au/38314/comment-page-1#comment-734081

    Parliament already has the power to determine eligibility, by otherwise providing using section 34, which it has already used to make Australian Citizenship required for eligibility. It is the question of disqualifications that requires a successful referendum to change.

    There are some sensible disqualifications, like undischarged bankrupts and people serving sentences of imprisonment of one year or longer.

  8. http://www.tallyroom.com.au/38314/comment-page-1#comment-734084

    A restriction on taking up a foreign citizenship which in Parliament is reasonable, given that that requires active allegiance to a foreign power, and is also far more common that a full dual citizenship ban.

    A referendum to remove the ban on existing (at the time of nomination) citizenships might be possible if the ban keeps striking people out for distant relatives causing citizenships (for example a mother/ grandmother/great grandmother whose first husband was an immigrant from somewhere that gave citizenships out by marriage and still gives them out by unlimited decent, causing the citizenship to descend through people not descended from the first husband). To pass, it may need to be worded something like “Do you approve of the amendment to remove the application of foreign citizenship laws to the ability of Australians to run for their own Parliament?”, which a not the most neutral of questions.

    Amending of the disqualification to apply only after election works well with most offices of profit or trust under the crown, since they are usually easy to get rid of quickly and are subject to the Constitution, however, given the convoluted processes some countries require to renounce citizenship, applying the foreign citizenship ban only to taking a seat means that seats could be left unrepresented for a period of time while the renunciation is processed (potentially even in the case of an early August half-Senate election).

  9. Thanks for drawing my attention to section 34. Now that I know it’s there, I would be in favour of repealing section 44 altogether, because that’s the simplest solution.

    I understand that other people might not be in favour of that, and that it might not pass a referendum, but neither of those is a good reason for me to change my mind about what I think the best solution would be.

    As far as I’m concerned, if the voters want to elect somebody to Parliament, they should be able to. If there is some category of people the voters don’t want in Parliament, whether that’s dual citizens or bankrupts or anything else, then the voters should not elect them to Parliament, and if the voters are resolved on electing somebody despite that person falling into some currently disqualified category, then in that case I’m with Falstaff: that resolution should not be thwarted by ‘the rusty curb of old father Antic the law’.

    If your view is that dual citizens should be kept out of Parliament, even if people are willing to elect them, then I don’t expect you’re going to change that view, but I can’t find any justification for it.

  10. I am not in favour of the foreign citizenship ban, most of the office of profit or trust ban applying to nomination and election (only the judiciary and high up parts of the public service should be banned from nominating and other public service employees should just be required to resign before taking their seats) or the ban on people who are subject to be sentenced to a year or longer in prison but not actually serving that sentence (sentences not resulting in inprinsonment or still subject to appeal should not disqualify). The pecuniary interest clause could also potentially do with some tweaking.

    The rest of section 44, I support.

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