Parliamentary Committee Recommends Referendum On Section 44

“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.”

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. 

• "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."

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.