Speaking about the parlous state of politics in this country, anti-corruption campaigner Tony Fitzgerald wrote that “ethics, tolerance and civility are intrinsic elements of democratic society and that the politicians’ mutual contempt and aggressive, ‘end justifies the means’ amorality erodes respect for authority and public institutions and compromises social cohesion.”
Truer words were never spoken. Our politicians can thank themselves for the loss of the community’s trust. Their behaviour in so many areas is deplorable. The standards they set for themselves would not be tolerated in any other workplace or public institution.
And when problems arise, the politicians police themselves and, unless there is intense media scrutiny as in the case of Bronwyn Bishop, they do nothing.
“The usual, and sometimes intended, outcome is a flurry of superficial activity, appointment of a suitable group of other insiders to report, lengthy discussion of their report, considerable navel-gazing, a feel-good pronouncement and business as usual,” wrote Mr Fitzgerald.
A prime example of this is the current imbroglio regarding Section 44 of the Consitution.
The House of Representatives Standing Committee on Legal and Constitutional Affairs was given a reference in late 1996 to inquire into and report on the operation of subsections 44(i) and (iv) of the Constitution, including the exceptions to subsection 44(iv). The Committee was also asked to inquire into and report on action to address any identified problems, including constitutional amendment, legislative change and administrative action.
In approaching its task the Committee had regard to the work of previous studies of section 44 including the Senate Legal and Constitutional Affairs Committee report of 1981, the Australian Constitutional Convention (1983 session) and the Constitutional Commission which reported in 1988, as well as significant case law on section 44, particularly Sykes v Cleary (1992) and Free v Kelly (1996).
The AEC had already provided submissions to the Joint Standing Committee on Electoral Matters following the 1987, the 1990, the 1993 and the 1996 federal elections, highlighting the difficulties that candidates experience in ensuring their compliance with the various provisions of section 44; indicating that the AEC does not have and should not have any statutory responsibility in providing legal advice to candidates on their particular circumstances; and suggesting that short of constitutional amendment by referendum, there are no real legislative or administrative solutions to the problems experienced by candidates in determining their vulnerability to the section 44 disqualifications. These views on section 44 expressed at past inquiries by the AEC, were reiterated in 1997 to the inquiry by the Legal and Constitutional Affairs Committee.
The Committee found that:
Subsection 44(i) expresses the principle that members of parliament must have clear and undivided loyalty to Australia and must not be subject to the influence of foreign governments. The language in which the principle is expressed is archaic. The provision was drafted before the concept of Australian citizenship developed and the scope of the subsection is uncertain.
The exclusion from federal parliament of persons who have dual or multiple citizenship is problematic. First, there is a question of whether the many Australian citizens who are dual citizens should be excluded from the political process. Second, the steps necessary to renounce other citizenships are those embodied in the relevant foreign law. They may be cumbersome or uncertain. The process may also be irreversible. Those who renounce a foreign citizenship in order to nominate and then fail to get elected may be considered to have paid a high price for participation in the political process. Third, many Australians may be unaware that they are dual citizens.
They concluded that the problems in the operation of section 44 can only be properly addressed by a national referendum to amend the Constitution. In the Foreward to the Report, the Chairman of the Committee said the following:
As the collection of evidence drew to a close it became evident that there was but limited scope for addressing the problems by means of legislative and/or executive action. The Committee considers that constitutional amendment is necessary to address the problems raised by the subsections. The Committee is well aware that amendments have little chance of succeeding at referendum unless there is bipartisan support for the proposals outlined in its report. We trust that such support will be forthcoming.
The conduct of the inquiry and consideration of our report demonstrated the best features of the parliamentary committee system – including the ability to approach a problem on its own merits and to seek the best solutions…
The likelihood of a referendum being held on section 44 of the Constitution alone is probably remote, but in the context of the forthcoming Constitutional Convention, and other recent debates on the contemporary relevance of the Constitution, it is possible that amendments to section 44 could be put to the people as part of a larger package of reforms. Whatever the pathway to constitutional change, it would appear from the deliberations of this Committee that there is a real possibility of bipartisan political support for amendments to section 44 of the Constitution.
The Chairman of that Committee was Kevin Andrews.
Thirteen years later, in April 2010, the Australian Electoral Commission reported that:
The Government has yet to respond to the recommendations by the Committee that a referendum be conducted to amend section 44, and that the AEC, DFAT and DIMA work together to improve the quality of information available to the public.
We are now twenty years on and still nothing has been done.
It is obvious our Constitution needs an update and while we are at it we could include recognition of Aboriginal and Torres Strait Islanders and remove the laws that allow racial discrimination.
But the chances of our gutless do-nothing politicians listening to the advice from countless inquiries and submissions appear to be zero.
So suck it up kids and bear the consequences of your own inaction.
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