Section 44 of the Constitution of Australia

The Constitution

Section 44 of the Constitution states :

44. Any person who -

(i.) Is under any acknowledgement of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or citizen of a foreign power: or(ii.) Is attainted of treason, or has been convicted and is under sentence, or subject to be sentenced, for any offence punishable under the law of the Commonwealth or of a State by imprisonment for one year or longer: or(iii.) Is an undischarged bankrupt or insolvent: or(iv.) Holds any office of profit under the Crown, or any pension payable during the pleasure of the Crown out of any of the revenues of the Commonwealth: or(v.) Has any direct or indirect pecuniary interest in any agreement with the Public Service of the Commonwealth otherwise than as a member and in common with the other members of an incorporated company consisting of more than twenty-five persons:

shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.

But sub-section iv. does not apply to the office of any of the Queen's Ministers of State for the Commonwealth, or of any of the Queen's Ministers for a State, or to the receipt of pay, half pay, or a pension, by any person as an officer or member of the Queen's navy or army, or to the receipt of pay as an officer or member of the naval or military forces of the Commonwealth by any person whose services are not wholly employed by the Commonwealth.

(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.

Nile v Wood and Re Wood

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 USS Joseph Strauss 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 section 44 of the Constitution, relevantly including that the section required an identified foreign power and an acknowledgement of allegiance.

It was later discovered that Wood was not an Australian citizen at the time of his election. The High Court unanimously determined that as he was not an Australian citizen he was not entitled to be nominated for election as a senator case and therefore had never been validly elected. The decision was based on the explicit 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 dual citizen of the United Kingdom would also disqualify a candidate from election.

Free v Kelly

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 wasn't 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 RAAF.

Sue v Hill

At the 1998 federal election, Heather Hill, a woman with dual British-Australian citizenship, was elected to the Australian Senate as a senator for Queensland. Henry Sue, a voter from Queensland, appealed to the High Court of Australia, sitting in its capacity as the Court of Disputed Returns. Chief Justice Murray Gleeson ruled that the United Kingdom qualified as a "foreign power" under section 44(i), and as a British citizen Hill was therefore unable to take up her Senate seat. As a result, Len Harris, the second One Nation party candidate on the ballot, was elected and took Hill's place in the Senate.

Nile v Wood

Another part of Nile's challenge to Wood's election was that Wood had served a term of imprisonment in 1972 and had been convicted of obstructing shipping. These related to the $120 fine for paddling a kayak in front of the USS Joseph Strauss and being gaoled for one month in 1972 for refusing to be conscripted to fight in the Vietnam War. The observations of the High Court about section 44 of the Constitution included that the disqualification is not simply for the conviction of an offence: the offence must be punishable by imprisonment for one year or more.

Re Culleton (No 2)

Rod Culleton had been declared elected as a Senator for WA following the 2016 federal election on 2 July. In March 2016, before the election, Culleton had been convicted, in his absence, of larceny. He had the conviction annulled on 8 August, after the election. He then pleaded guilty but no conviction was recorded. In the High Court it was argued for Culleton that the annulment retrospectively voided the conviction and that because he was convicted in his absence, he could not be sentenced to a term of imprisonment. The High Court rejected each of these arguments, holding that:

Senator Culleton was a person who had been convicted and was subject to be sentenced for an offence punishable by imprisonment for one year or longer at the date of the 2016 election. That was so, both as a matter of fact and as a matter of law. The subsequent annulment of the conviction had no effect on that state of affairs. It follows from s 44(ii) that Senator Culleton was "incapable of being chosen" as a Senator. In the result, there is a vacancy in the representation of Western Australia in the Senate for the place for which Senator Culleton was returned.

Nile v Wood

A third part of Nile's challenge to Wood's election was that Wood was insolvent, with Wood being described as "probably the only Member of Parliament to have been elected while on the dole". The High Court held that it was not enough to allege that Wood was insolvent, he had to have been adjudged to be an "undischarged insolvent".

Re Culleton

Other proceedings concerning Culleton concerned a creditor's petition in the Federal Court, seeking to have Culleton declared bankrupt. On 23 December 2016 the Federal Court made a sequestration order which had the effect of making Culleton an undischarged bankrupt. On 11 January the President of the Senate wrote to the Governor of Western Australia, to notify her that Culleton's seat had become vacant due to his having become an undischarged bankrupt on 23 December 2016. Culleton commenced proceedings in the High Court to challenge the power of the President to declare his seat vacant, however this challenge was rejected by Justice Gageler on 31 January 2017. The sequestration order and therewith the finding of bankruptcy were confirmed by a full court of the Federal Court on 3 February 2017.

However, Culleton's bankruptcy ceased to determine his eligibility when, later on the same day but in a separate case, the High Court declared that he had been ineligible for election to the Senate owing to conviction of an offence punishable with a sentence of one year or more, under subsection 44(ii).

(iv) Office of profit under the Crown

Subsection 44(iv) refers to an "office of profit" in the traditional sense of a position carrying an entitlement to any form of financial benefit, including salary. As with the reference to "pension", the intention is prevent the Executive from corrupting a member by offering such a position. However, the provision has been interpreted to prevent any individual who is already in state employment from standing for parliament, even if they would have had to resign from that position if elected.

Sykes v Cleary

The High Court voided the election of Phil Cleary in a 1992 by-election, holding that he had been acting in an office of profit under the crown. At the time of his election, Cleary had been on leave without pay from his job as a school teacher in the Victorian state system. The effect of this judgement was that public servants had to resign from the public service before nominating. In the wake of this decision, the Commonwealth Public Service made provisions for public servants to be automatically re-engaged should they resign to run for office and be unsuccessful.

Jeannie Ferris

During the period between the declaration of her election in March and taking her seat on 1 July of that year, Jeannie Ferris had been employed by Liberal Party Senator Nick Minchin. It was unclear at the time whether this constituted holding an "office of profit under the Crown" as specified in subsection 44(iv). To avoid the possibility of her election being declared invalid, Ferris resigned from the Senate only to be immediately re-appointed by the Parliament of South Australia to fill the casual vacancy that her resignation had created.

George Newhouse

At the 2007 federal election, it was claimed by the Liberal Party that George Newhouse, the high-profile Australian Labor Party candidate for the seat of Wentworth, was ineligible to stand for parliament under subection 44(iv). The basis of the claim was that Newhouse had not resigned from the New South Wales Consumer Disputes Tribunal and so was occupying an "office of profit under the Crown". Liberal frontbencher Andrew Robb claimed that a by-election in Wentworth would be necessary if Newhouse were to win the seat, due to his ineligibility. The matter never came to a head, however, as Newhouse was comfortably defeated by the incumbent Liberal Party candidate and federal Minister Malcolm Turnbull.

(v) Pecuniary interest in an agreement with the Commonwealth

As with subsection 44(iv), the aim of subsection 44(v) is to prevent corruption of members by the Executive.

Re Webster

What constituted a "pecuniary interest" did not arise for consideration by the High Court until 1975 when the Senate referred questions concerning the eligibility of Senator James Webster who was a shareholder in and managing director of a company founded by his late grandfather. The company supplied timber and hardware, by public tender, to both the Postmaster-General's Department and the Department of Housing and Construction. Barwick CJ considered the history of the section and its predecessors, describing it as a vestigial part of the constitution. In his view, it had been inserted not to "protect the public against fraudulent conduct of members of the House", but rather to protect the independence of the parliament against influence by the Crown. On this basis Barwick CJ concluded that the interest "must be pecuniary in the sense that through the possibility of financial gain by the existence or the performance of the agreement, that person could conceivably be influenced by the Crown in relation to Parliamentary affairs."

The decision has been criticised as taking a narrow approach to the construction of the section that robs it of most of its efficacy, rendering it almost useless as a check upon would-be fraudulent politicians and offering "little practical protection to the public interest or Parliament's reputation".

If Webster had been found to have sat while ineligible, he would have been liable to a daily penalty under section 46 of the Constitution, which could have accumulated to more than $57,200. One consequence of the question about Webster's eligibility was the passage in 1975 of the Common Informers (Parliamentary Disqualifications) Act which limited any penalty prior to commencing the suit to $200; although, after the suit has commenced, there is a daily penalty of $200.

Warren Entsch

The issue arose again in 1999 concerning Warren Entsch and his interest in Cape York Concrete Pty Ltd who had a $175,000 contract to supply concrete for RAAF Scherger. Kim Beazley, the Leader of the Opposition moved that the the Court of Disputed Returns should decide whether Entsch's seat in the House of Representatives had become vacant because he had a pecuniary interest in an agreement with the Commonwealth. The motion was lost and the House passed a resolution declaring that Entsch did not have a pecuniary interest within the meaning of section 44(v). Whether the House had power to pass the resolution has been questioned.

Re Day

On 1 November 2016, Bob Day resigned his seat as a Senator for South Australia, with immediate effect. Shortly after Day's resignation, the Senate referred the question of whether Day had been disqualified from sitting or being elected as a Senator due to an indirect pecuniary interest in the ownership of a building in Adelaide, which the Commonwealth was leasing as Day's electorate office. The Attorney-General argued that the reasoning of Barwick CJ in Re Webster was incorrect and that the purpose of the subsection was to protect the parliament from the potential for influence, whether that potential arises from the conduct of the executive or a conflict between the duty of a Parliamentarian and their financial interests. The case was heard by a full court of the High Court on 7 February, and judgment is reserved.

Exemptions

The office of Ministers of State are one category exempted from disqualification under subsection (iv). It could hardly be otherwise given section 64 of the Constitution requires a Minister to be a senator or a member of the House of Representatives. The position of ministers assisting, parliamentary secretaries and for ministers without portfolio is problematic.

The wording of the exemption in relation to the military forces has been described as extremely obscure and generally assumed to exempt persons who are not full time members of the defence forces. Whether that assumption is correct has been doubted. There is some question as to the position of the RAAF as it can be comfortably read as part of the military forces, but it is harder to include it in the expression "navy or army". It wasn't thought that active military service during World War I acted to disqualify Senator James O'Loghlin.

Free v Kelly

One aspect of the challenge to the election of Jackie Kelly in 1996 was that she was serving as an officer of the RAAF at the time of her nomination on 2 February 1996 prior to her transfer to the RAAF Reserve on 17 February. The majority in Sykes v Cleary had determined that the process of being chosen commences on nomination. Kelly subsequently conceded that she was incapable of being chosen because she was a full time officer of the RAAF at the time of her nomination as a candidate. It has been suggested that the Kelly's concession may have been greater than was necessary. Kelly won the subsequent by-election with an increased margin.