Friday Filing: Oh What A Tangled Web

It’s now two weeks since the High Court of Australia handed down it’s judgement in the so-called “Citizenship Seven” cases concerning the constitutional eligibility of seven Federal parliamentarians – six senators and one member of the House – resulting in the ousting of four senators and the only House member. One would have hoped that as a result of the Court’s judgement, the necessary steps to find replacements would have been quickly adopted, the Parliament effectively restored to working order, and things would have gone back to what passes for normality in Australian politics.

One could have hoped…and one would be extremely disappointed.

Within a week, another senator – of no less prestige than the President of the Senate – revealed that he too was a dual citizen and resigned his seat. That the senator in question had known of his circumstances and status as a dual citizen for some time is a question of debate, yet the ultimate outcome is that the High Court will have to once again make a judgement about his eligibility and how he might be replaced. In the meantime, the ability of the Senate to undertake their proper purpose is impaired, at the very least, and the Commonwealth of Australia and her citizens and residents are the ones who will be most directly impacted.

In the words of the infomercials, however, “wait, there’s more”. It would seem that at least two members of the House of Representatives will be needing to answer the question of their constitutional eligibility as well. On of those two holds a seat on behalf of the ruling Liberal/National coalition, which means that, in the event of him being ruled ineligible under s44(i) of the Constitution, there would need to be a by-election in what would be a very marginal seat. There are real possibilities in such an eventuality that the ability of the current Government to hold an absolute majority in the House would be endangered.

And then there are the replacements for the four senators who the High Court initially ruled ineligible. Through a recount of the ballot papers for their respective states, the High Court was able to confirm replacements for three of them in all but absolute terms. The fourth name wll be referred to the full bench of the High Court because there is some doubt over her eligibility under a different part of s44 of the Constitution. That will be decided by the Court after a hearing scheduled for next Wednesday, and the outcome will be what it will be.

I can only speak personally, but it would seem fairly clear, even on a very plain reading of the text, of the variety of reasons why someone – anyone – would be ineligible to be nominated for election to either the House of Representatives or the Senate. Certainly the obligation is on the individual seeking nomination – they sign the required form – to ensure they are able to seek nomination without falling foul of s44 of the Constitution. I wonder, however, to what extent the political parties to which the individual belongs must also accept some responsibility in the current debacle for not asking the kind of questions of potential candidates that would enable a greater clarity around their indivvidual status and eligibility for nomination for elected office.

I am willing to stand corrected, but I doubt the High Court of Australia has ever been so busy in one of its original jurisdiction in quite some time.

One of the beneficial outcomes of this whole debacle, however, is an increasing awareness and recognition of the place of the Constitution of the Commonwealth of Australia. I suspect that most Australians knew we had one, and might even have been able to tell you some of the contents of the Constitution (assuming they didn’t get confused with the US Constitution that is so often referred to in some of the television shows that ‘grace’ our screens). The advent of this current citizenship drama, perchance, might encourage more Australians to increase their knowledge of our own Constitution.

If that was to be one of the outcomes of this whole citizenship debacle now gripping our Federal Parliament, then something good would come from the mess.

In my own humble contribution to the awareness of fellow Australians as to the content of the Constitution of the Commonwealth of Australia, here follows the contents of Section 44:

Any person who:

(i) is under any acknowledgment 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 a 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 subsection (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.

 

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Article by Andrew Doohan

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