Section 44 of the Australian Constitution lists the grounds for disqualification on who may become a candidate for election to the Parliament of Australia. It has generally arisen for consideration by the High Court sitting in its capacity as the Court of Disputed Returns.
It has been reviewed several times, but has not been amended. Following several disqualifications under sub-section 44(i), in particular the 2017–18 Australian parliamentary eligibility crisis, in which several high-profile politicians were forced to resign, a new review of the whole section was instituted on 28 November 2017.
The Constitution Section 44 of the Constitution states:
The Australian Electoral Commission reproduces the section in its Candidates Handbook, where it draws particular attention to s 44(i) and (iv). As to the nomination form, it advises that to give "false or misleading information", or to "omit any information if omitting that information would be misleading", is a criminal offence and that the "maximum penalty for this offence is imprisonment for 12 months". It does not spell out that such a conviction could result in disqualification under s 44(ii).
Almost every part of section 44 has proved difficult to interpret and apply. Its replacement or revision has been frequently considered, particularly by a Constitutional Commission in 1988 and by a parliamentary committee in 1997, but their proposals have not been pursued. 4.735-4.900. There has been regret that the framers of the Constitution did not accept the suggestions that criteria of disqualification be left entirely to the Parliament or that, at least, like s 34 "Qualifications of members" this section should begin "Until the Parliament otherwise provides".
Following several disqualifications under sub-section 44(i) during 2017, on 28 November 2017 Prime Minister Malcolm Turnbull asked the Commonwealth Parliament's Joint Standing Committee on Electoral Matters to conduct a new inquiry into the section, including the possibility of amendment. Public hearings began on 8 December and submissions closed on 9 February 2018; the Committee was to report on s 44(i) by 23 March 2018 and on the other sub-sections, particularly 44(iv) and 44(v), by 30 June.
(i) Allegiance to a foreign power Subsection 44(i) has generally been interpreted by the High Court of Australia as meaning that persons with dual citizenship are not permitted to stand for election and that a person must take "reasonable steps" to renounce their citizenship of the other country. Its interpretation has been difficult. There is the preliminary awkwardness that the Constitution itself does not require a member of the Parliament to be an Australian Citizen (or, before the introduction of Australian citizenship in 1949, a "British subject" or "subject of the Queen"), although Constitution s 42 does require members to swear an oath or affirmation of allegiance to the monarch; however, Australian citizenship has been made a statutory condition of eligibility for election. Qualifications for nomination.
In 1981, a committee of the Senate recommended that s 44(i) be removed, although with the insertion of a new provision requiring Australian citizenship; Recommendations 1-4. as did the Constitutional Commission report of 1988. 4.770, 4.493-4.497 and Appendix K, Bill no. 8 (p 1000). In 1990, The Canberra Times reported that at least nine MPs elected at the 1987 federal election had renounced foreign citizenships, as a result of threatened High Court action by Sydney barrister and independent Senate candidate George Turner. In 1997, a committee of the House of Representatives, whose report predicted some of the difficulties that have since arisen, recommended three changes to the Constitution: "delete subsection 44(i); insert a new provision requiring candidates and members of parliament to be Australian citizens; [and] empower parliament to enact legislation determining the grounds of disqualification of members of parliament in relation to foreign allegiance". 2.81.
Compared to other Anglosphere nations, this is an unusual provision. Neither the British Parliament nor the US Congress, both of which served as models for the Australian Parliament, forbids dual citizens from holding office. Canada and New Zealand similarly have no prohibitions on MPs holding dual citizenship.
An opinion poll taken in late November to early December 2017 found overall opposition to changing s 44(i) of 49% to 47% (within the margin of error), with 5% undecided. Fairfax/Ipsos poll, 29 November to 2 December 2017. The print edition reported support from Coalition voters (54/42/4), opposition from Labor voters (44/52/4) and substantial support from Greens voters (62/34/4). An earlier poll by Essential asked whether they thought dual citizens should be allowed to be members of parliament, 41% said yes and 40% said no, with 18% saying they did not know.
In May 2018, a Newspoll found 51% backed section 44 of the constitution banning dual-citizenship holders, against 38% who did not.
The third arm of s 44(i), "or entitled to the rights or privileges of a subject or a citizen of a foreign power", has never been the subject of a judicial decision. However, it was suggested in July 2019 that this could catch at least 26 current members of the parliament, from almost all parties as well as independent. They include some who renounced actual foreign citizenship prior to or during the crisis of 2017–18. The argument is that some countries provide rights to non-citizens that include important rights ordinarily possessed by citizensparticularly a "right of abode" allowing entry, residence and employment, as well as eligibility to vote and even to sit in the country's parliament. The most relevant example is that, in the UK, a citizen of a country in the Commonwealth of Nations counts as a "Commonwealth citizen" (not to be confused with citizenship of the Commonwealth of Australia).
Sarina v O'Connor (1946) and Crittenden v Anderson (1950)
Following the 1946 federal election, an unsuccessful candidate for West Sydney, Ronald Grafton Sarina, petitioned the High Court to declare the election of William O'Connor void under s 44(i), claiming that as a Roman Catholic, O'Connor was under an allegiance to a foreign power. In December that year, Sarina's solicitor sought leave to withdraw the petition, which was granted.
A similar case arose in 1950, with independent candidate Henry William Crittenden petitioning for Gordon Anderson (Kingsford Smith) to be disqualified on the basis of his Catholicism. Justice Fullagar ruled against Crittenden, saying that were his premise to be sustained, it would prevent any Catholic from holding a seat in the Australian parliament. The decisive factor was that to exclude Catholics from the parliament would be to impose a "religious test" for public office, contrary to Constitution s 116. Fullagar J also said that the petition invited analysis of the relations between church and state over centuries, the relationship between Italy and the Papal States, and the sovereignty of the Vatican City Statenone of which, in his opinion, was relevant to the election of an Australian member of parliament. The case was dismissed, with Crittenden ordered to pay Anderson's costs.Crittenden v Anderson High Court (Fullagar J) 23 August 1950; (1950) 51 ALJ 171.
Nile v Wood and Re Wood (1987) Robert Wood was elected as a Senator for NSW in 1987. The Call to Australia party's Elaine Nile challenged his election on grounds that included that "His actions against the vessels of a friendly nation indicate allegiance, obedience or adherence to a foreign power".. This related to Wood being fined $120 for paddling a kayak in front of the US warship in Sydney Harbour. The High Court, Brennan, Deane and Toohey JJ, dismissed the petition in December 1987 on technical grounds. The brief judgment made a number of observations about subsection 44(i), relevantly including that it required an identified foreign power and an acknowledgement of allegiance.
It was later discovered that Wood had not been an Australian citizen at the time of his election. The High Court unanimously determined that, as he had not been an Australian citizen, he had not been eligible to be nominated for election as a senator and therefore had not been validly elected. The decision was based on the requirement in the Commonwealth Electoral Act 1918 that a candidate must be an Australian citizen. The High Court expressly declined to rule on the question of whether being a citizen of the United Kingdom would also disqualify a candidate from election..
Sykes v Cleary (1992)
The High Court held in Sykes v Cleary that the 1992 by-election for the Victorian seat of Wills was void because Phil Cleary, who had been declared elected, had held an "office of profit under the Crown", which violated s 44(iv). It was held that the centuries-old phrase "office of profit under the Crown" not only includes public servants as ordinarily understood but extends to "at least those persons who are permanently employed by government", whether government of the Commonwealth or of a State. Thus it included Cleary as a permanent teacher in a Victorian public school.
It was also determined (with one dissent) that a candidate must be qualified at the time of nomination. It was not sufficient that Cleary had been on unpaid leave and that he had resigned from his position on hearing that he would be declared elected.
It was therefore unnecessary for the High Court to decide the challenge under s 44(i) to the eligibility of other candidates, but it did so since they evidently might have wished to stand in the next election. Bill Kardamitsis had been born in Greece as a Greek citizen and John Delacretaz in Switzerland as a Swiss citizen; they had migrated to Australia and become Australian citizens. By a majority of 5:2 the Court held that a dual citizen is disqualified by s 44(i) unless they have "taken reasonable steps" to renounce their foreign citizenship. Renunciation procedures were available to Kardamitsis and Delacretaz in Greece and Switzerland, but neither of them had taken any such step.
Deane and Gaudron JJ dissented, holding that Kardamatsis and Delacretaz had effectively renounced their foreign citizenships when taking an Australian oath of allegiance, which at the times when they were naturalised had included, or required previously making, a renunciation of all foreign allegiances.They were naturalised before 1986, when the renunciation requirement was removed. Additionally, Deane J thought that s 44(i) requires a "mental element" not only as to "acknowledgment" but also as to being "a subject or a citizen" of a foreign power: "it applies only to cases where the relevant status, rights or privileges have been sought, accepted, asserted or acquiesced in by the person concerned"..
A "mental element" had been explicit in early Convention drafts, which had disqualified any person "Who has taken an oath or made a declaration or acknowledgment of allegiance, obedience, or adherence to a foreign power, or has done any act whereby he has become a subject or citizen, or entitled to the rights or privileges of a subject or a citizen, of a foreign power" (Sydney Convention 1891 and, with capitalisation and punctuation changes, Adelaide Convention 1897); the provision took its present form at the Melbourne Convention 1898.
Free v Kelly (1996) At the 1996 federal election, the election of Jackie Kelly for the House of Representatives seat of Lindsay was challenged because she was a dual citizen of Australia and New Zealand at the time of her nomination. That part of the challenge was not pursued however as Kelly conceded that she was incapable of being chosen as a member of the House of Representatives while serving as an officer of the Royal Australian Air Force. at .
Sue v Hill (1999)