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.