What follows is information sent to me by a Facebook friend Nick Chugg regarding section 44 of the Australian Constitution and the changes that have been proposed over the years.
Reading through it reveals that Section 44 has been a contentious issue for some time. It also clearly indicates that prospective MPs should have been aware that dual citizenship was something to take very seriously. I don’t see how any aspiring politician could plead ignorance.
Nationals senator Matt Canavan and One Nation senator Malcolm Roberts have changed their stories to reveal that in the first instance they were lying about their citizenship status.
With the futures of 7 MPs under a cloud pleading ignorance will be an important factor in the courts ruling so I hope what follows helps in that regard.
Regarding Section 44 Constitutional review.
Numerous motions have been passed, the latest back in 2003.
“Proposals to Change Section 44
Section 44 has been the topic of regular review and debate. In 1980, the Senate referred constitutional qualification and disqualification issues to its Standing Committee on Constitutional and Legal Affairs.
The Committee reported in 1981. Its report, The Constitutional Qualifications of Members of Parliament recommended that every one of the five subsections of section 44 be either amended or deleted.
The Australian Democrats have on four separate occasions proposed bills to address the perceived limitations of section 44, but none has been fully debated. These Bills were:
Constitutional Alteration (Qualifications and Disqualifications of Members of the Parliament) 1985
Constitutional Alteration (Qualifications and Disqualifications of Members of the Parliament) 1989
Constitutional Alteration (Qualifications and Disqualifications of Members of the Parliament) 1992 and Constitutional Alteration (Electors Initiative, Fixed Term Parliaments and Qualification of Members) 2000.
The Constitutional Commission also considered the issue in the late 1980s. It recommended extensive reform of the qualification and disqualification provisions of the Constitution (see Chapter 4 of Volume One of the Final Report of the Constitutional Commission). Its recommendations were by and large similar to those of the 1981 Committee report, and to those suggested later by the House of Representatives Standing Committee and by Senator Bob Brown (see below).
1996 House of Representatives Standing Committee Report.
The House of Representatives Standing Committee on Legal and Constitutional Affairs conducted an Inquiry in 1996. The report was Aspects of Section 44 of the Australian Constitution: Subsections 44(i.) and (iv.). The key recommendations of that report were recommendation 2:
The Committee recommends that a referendum be held to make the following changes to the constitution:
delete subsection 44(i.)
insert a new provision requiring candidates and members of parliament to be Australian citizens.
Empower parliament to enact legislation determining the grounds for disqualification of members of parliament in relation to foreign allegiance.
and recommendation 3:
The Committee recommends that subsection 44 (iv.) be deleted and new provisions be inserted in the constitution.
One provision should require a person who holds a judicial office under the Crown in right of the Commonwealth or a state or a territory to resign from the office before he or she nominates for election to the federal parliament.
Under the second provision certain other public offices, specified by the parliament, would be automatically declared vacant if the occupant of any such office nominated for election to the Senate or the House of Representatives. Under the third provision certain other public offices, specified by the parliament, would be automatically declared vacant if the occupant of any such office were elected to the Senate or the House of Representatives (emphasis added).
The Australian Electoral Commission published a summary and analysis of the House of Representatives report, in its Electoral Backgrounder No. 2, Parliamentary Report on Section 44 of the Constitution.
The government response to the House of Representatives Committee report was tabled on 9 December 1997.The government accepted the major recommendations of the Committee in principle, stating that:
it accepts that constitutional and legislative action is the only realistic way in which to overcome these shortcomings [of section 44]. Given adequate support for a suitable proposal, the government would be disposed to put the constitutional issue to a referendum at an appropriate time.
On the other hand, it also indicated:
that a proposal should not be formulated without first considering whether it would be appropriate also to amend other parts of section 44, or any other relevant constitutional provision.
There has been no such formal consideration of this issue since the government made its response.
On 29 October 1996 , following the High Court ruling in Free v Kelly, Senator Bob Brown moved a motion calling on the Government to formulate a proposal for amendment of the Constitution to deal with section 44. The motion was passed without a division.
Two years later, there having been no further action on the House of Representatives Committee Report, Senator Bob Brown introduced a Bill into the Senate, titled the Constitutional Alteration (Right to Stand for Parliament Qualification of Members and Candidates) Bill 1998. Its intention was to alter both subsections 44(i.) and 44(iv.) of the Constitution. Senator Brown s Bill highlighted one of the problems with reforming section 44.
Everyone agrees that the section is unsatisfactory. However, there are significant differences of opinion over how it should be changed. Senator Brown wanted to replace subsection 44(i.) with a requirement that a candidate be an Australian citizen.
During debate on the Bill on 3 December 1998, however, it was clear that others, such as National Party Senator Bill O Chee, believed that a candidate should hold only Australian citizenship.
Proposals in the Current Parliament
After the 1998 election, Senator Brown put the Bill back on the notice paper, and it was debated again on 15 May 2003. On this occasion the Bill secured the support of the ALP Opposition, the Australian Democrats, Australian Progressive Alliance and Greens, as well as independents Shane Murphy and Brian Harradine of Tasmania. However, a Bill proposing an amendment to the Constitution must pass each chamber by an absolute majority (see the Constitution, section 128). When Senator Brown s Bill was put to the vote, it secured the majority of votes in the chamber, but fell short of an absolute majority by three votes. Had another three of the ALP Senators present on the day but absent from the chamber for the division been there for the vote, it is likely that the Bill would have passed the Senate. However, unless there was a change in the government s view, it would have faced defeat in the House of Representatives.
On 30 October 2003, the Senate passed a motion moved by Australian Democrats Senator Andrew Bartlett, expressing the Senate s view that sections 44(i.) and 44(iv.) of the Constitution should be amended to remove the current prohibition on dual citizens and public sector employees being able to nominate for election to the Commonwealth Parliament. ”
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