Section 44 – Otherwise known as the Australian Senator career destroyer

Yesterday with the resignation of Larissa Waters due to an negligent oversight of having dual citizenship of Canada; Section 44 of the Constitution claimed it’s 4th victim since the 2016 election and 2nd victim in the last week with the resignation of Scott Ludlum due to his dual citizenship of New Zealand. The loss of two highly respected and competent Greens senators in a week has seen for an overhaul of the section in the constitution by many in the public. Before I return to the specific cases of the senators who have been caught out by Section 44 of the Constitution it is worth looking at what the relevant section says.

(1) essentially states that to stand for parliament a Senator has to ensure they don’t do any of the following:
(i) Have dual citizenship or no citizenship of Australia and that where dual citizenship is present they do not make sufficient efforts to renounce their citizenship to a foreign allegiance.

(ii) That the member of parliament has committed treason or if you are current serving time for a criminal offence or are in the middle of criminal proceedings that is longer than one year in length.

(iii) Is currently bankrupt or insolvent

(iv) Is currently working and making a profit from the crown (i.e working in the public service).

(v) That the Parliamentarian is making a monetary arrangement in a Public Service of the Commonwealth of Australia, so for example in (2) Dr Gillespie has faced questions about his eligibility due to the fact that he leased out one of his owned businesses to Australia Post which is a Government owned entity.

So the first element of section 44 of the constitution is what has caused the resignation of Scott Ludlum and Larissa Waters. The reasoning for this part of the constitution is that it is a conflict of interest whether real or perceived to be voting on laws that are passing into land while also having citizenship of another nation. A fictitious example of this would be say we wanted to impose a tariff on the importation of lamb to New Zealand then it could be a conflict of interest to someone who still holds dual citizenship of New Zealand to be debating such a law. I also think that due to the public scrutiny that an elected member of parliament holds any perceived issues of conflict are as bad as if an actual conflict did exist.

Bob Day’s case which interestingly did not receive the same outrage for his removal from the Senate came under two sections of the constitution. Before (3) became an extra constitutional issue Bob Day had already resigned from the senate because of having to claim bankruptcy. However it was later discovered that Bob Day had been leased a building for his electoral office that was already privately owned which is in clear breach of line (v) of section 44 of the Constitution.

Rod Culleton one of the 4 One Nation Senators elected also fell foul of section 44 of the Constitution and his case again did not receive the same outrage that was levelled to the Greens Senators. Again (4) shows that Rod Culleton lost his seat in the senate due to two elements of section 44, firstly he was facing charges of larceny which carried a penalty of over 1 year penalty. He also was declared to be bankrupt when he failed to pay back an outstanding loan.

Line (iv) of the section is something that has not recently been tested. However in 1993 (5) Phil Cleary was ruled ineligible to stand in the by election of Wills which was caused by the retirement of Bob Hawke. Phil won the by election as an independent however because he was public school teacher at the time he was technically a paid member of the crown and therefore was ineligible, this is despite him being on unpaid leave at the time. This could trip up a number of potential parliamentarians although this part of the constitution has been worked around by public servants being allowed to quit their jobs, stand for election and if unsuccessful then be able to automatically reenter their jobs upon the completion of the election.

There are a few added points for me to make on this constitution given the public reaction to the Greens resignations. A lot of people have called for section 44(i) to be scrapped in the wake of the resignations, the biggest issue with that is that because it is part of the Australian Constitution then to change the section we would need a referendum. This of course brings a hefty cost of running the referendum as well as any advertising delegated to prosecuting the cases of a yes or no vote for the question. I have also seen a lot of fingers pointed at relevant Labor or Liberal members who were born overseas by the same people who are upset at the resignations of Scott Ludlum and Larissa Waters, the most noted example being Tony Abbott. I think that is hypocritical and points out that one of the big differences between major parties and smaller parties is that the major parties do a much better job of vetting potential candidates for potential issues that could preclude eligibility of election in comparison to smaller parties. There has also been questions raised as to whether votes taken by members should be excluded and if salary paid to the senator should be repaid. (6) which is another excellent post by the Psephologist Yoda Antony Green points out that the high court has previously ruled that votes taken by ineligible members can not be retrospectively discounted and that the practice of the government is not to push for salary to be chased from ineligible members. The reason for this I suspect is self preservation in that if you chase one senator for returned salary you open the pandoras box of having that come back to bite you if one of your pack are found to be ineligible. I think my last point would be that the Greens are facing some real issues at the moment. Now a lot of the attention has been on the infighting between Tony Abbott and Malcolm Turnbull, however if the Greens were a major party they’d be getting the coverage of a party in crisis. They have now lost two deputy leaders and senators in a week and have a member in Lee Rhiannon who has been excluded from attending contentious party room discussions. This same senator has responded by pulling on her state branch pushing back against that decision and by her calling the current leader a real disappointment. Now the two senators who will replace Ludlum and Waters will still be.Greens members due to the recount of the senate ballots flowing their votes onto the next eligible Greens ticket member but to lose roughly 15 years of parliamentary experience in a group of 10 senators/MPS is a real loss!

 

References

(1) http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/Publications_Archive/archive/Section44

(2) http://www.abc.net.au/news/2017-04-07/opposition-intensifies-campaign-against-david-gillespie/8423600

(3) http://www.abc.net.au/news/2017-04-05/family-first-bob-day-election-ruled-invalid-by-high-court/8417204

(4)  http://www.theaustralian.com.au/national-affairs/rod-culleton-ineligible-to-be-elected-to-senate-high-court-rules/news-story/7eae79c15f652c2d3673c20c11d08c00

(5) https://en.wikipedia.org/wiki/Phil_Cleary

(6) http://blogs.abc.net.au/antonygreen/2017/07/scott-ludlam-resigns-what-happens-to-his-senate-seat.html#more

2 Comments

  1. I love the detail Chris certainly it has the potential to open a Pandora’s box especially if having to pay back money similar to how a Centrelink customers has to pay back if they provide incorrect information that results in over payments of entitlements although some would say completely different however om sure if you dig deep enough around the Centrelink customers paying back over payment something might come up that may mimic the dual citizenship issue.
    Secondly it seems on the surface dual citizenship probably the least of the concerns average Australians would consider as ineligible reason to run for parliament
    Compared to others like bankruptcy guilty of an offence requiring jail
    Etc but none the less it’s has now made sure people cross the eyes and dot the tees before nominating to run for office.

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  2. I think the other thing on paying back salary is they did the work, I’d be more in favour of some form of penalty rather than the whole salary returned but I suspect that implementing a just penalty would still be open to interpretation as to how fair that is.
    I guess my point on comparing the matters is that at the moment outrage on an issue seems to be based on whether they match your political persuasion not on what the crime is

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