Parliamentary Committee Recommends Referendum On Section 44

Friday 18 May 2018 @ 11.26 a.m. | Judiciary, Legal Profession & Procedure | Legal Research

The Joint Standing Committee on Electoral Matters (“the Committee”) has released a report on section 44 of the Constitution that recommends the Australian Government hold a referendum to either repeal sections 44 and 45 of the Constitution, or to insert into the sections the words “Until the Parliament otherwise provides”.  However, the Turnbull Government has suggested they may not implement the Committee’s findings, with The Guardian Australia reporting that:

“Malcolm Turnbull has given a strong indication that the government will oppose a referendum to fix the citizenship crisis, arguing they are hard to win and that aspiring politicians should “get their act together” and renounce foreign citizenship instead.”

Terms of Reference

The Prime Minister referred “matters relating to Section 44 of the Constitution” to the Committee  on 28 November 2017, after the High Court ruled on the so-called “Citizenship Seven” cases.

The terms of reference state:

Accordingly, the following matters are referred to the JSCEM: 

A. How electoral laws and the administration thereof could be improved to minimise the risk of candidates being found ineligible pursuant to section 44(i) (this could involve, among other matters, a more comprehensive questionnaire prior to nominations, or assistance in swiftly renouncing foreign citizenship); 

B. Whether the Parliament is able to legislate to make the operation of section 44(i) more certain and predictable (for example, by providing a standard procedure for renunciation of foreign citizenship, or by altering procedures for challenging a parliamentarian's qualifications in the Court of Disputed Returns); 

C. Whether the Parliament should seek to amend section 44(i) (for example, to provide that an Australian citizen born in Australia is not disqualified by reason of a foreign citizenship by descent unless they have acknowledged, accepted or acquiesced in it); 

D. Whether any action of the kind contemplated above should be taken in relation to any of the other paragraphs of section 44 of the Constitution, in particular sections 44(iv) and 44(v); and 

E. Any related matters. 

The Committee was chaired by Liberal Senator Linda Reynolds.

Committee’s Considered Options

The Committee considered four options:

  • No change
  • Administrative level reforms, including assistance from the Australian Electoral Commission prior to elections
  • Legislative and procedural reforms, including avoiding High Court referrals or introducing legislation to allow automatic foreign citizenship renunciation or establishing a federal integrity commission
  • Amending section 44, either by repealing it totally or by inserting the words “until Parliament otherwise provides”

Committee Recommendations

The Committee made four recommendations:

  • "that the Australian Government prepare a proposed referendum question to either:
    • repeal sections 44 and 45 of the Constitution; or
    • insert into sections 44 and 45 the words: ‘Until the Parliament otherwise provides…’"
  • "if the referendum passes…  the Australian Government further engages with the Australian community to determine contemporary expectations of standards in order to address all matters of qualification and disqualification for Parliament through legislation under section 34 of the Constitution."
  • "in the event that a referendum does not proceed or does not pass, that the Australian Government consider strategies to mitigate the impact of section 44 as outlined in this report."
  • "that the Government consider the implications of this report in the context of the upcoming by-elections."

The Committee noted in the conclusion to their report:

Section 44 is no longer operating to effectively ensure its principal intent of parliamentary integrity and national sovereignty. Challenges to sitting members will continue into future elections; disrupting electoral outcomes, causing uncertainty and confusion, and having the potential to undermine the authority of both Federal Parliament and the Constitution itself.

Equally importantly, s. 44 acts as a deterrent for many Australians who are considering actively participating in politics. To fully represent the diversity of those they represent in the Federal Parliament, Australians of all backgrounds must have an equal opportunity to nominate for election. As it stands, s. 44 means some Australians have to jump through more hoops than others to stand in an election–including hoops they do not know exist or hoops that can appear overnight.

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