VIEWPOINT

Election rule fails to stand the test of time

THE shock resignations of Greens senators Scott Ludlam and Larissa Waters have brought into stark relief the inability of Section 44 of the Australian Constitution to stand the test of time.

Written in 1901 at Federation, it outlines who is ineligible to become a candidate for a federal election. While the Constitution is revered as time-honoured, there are some sections which reflect a 19th century worldview. Section 44 is one such section.

The section is now read as excluding anyone who holds dual citizenship from becoming a federal politician. At Federation, ‘British subject’ was the sole civic status for Australians. Multiculturalism was feared.

Moreover, in 1901 the framers of the Constitution also feared nepotism, hence the barring of people from standing for office if they have been in receipt of any funds from the Commonwealth.

For this reason, Section 44 prohibits anyone who “holds any office of profit under the Crown” from serving in Parliament. Although there is some conjecture around its modern interpretation, this applies to anyone whose salary is made up even in part by Commonwealth funding.

In 1992, the High Court declared the by-election victory of Victorian teacher Phil Cleary was invalid, concluding that he had been in “an office for profit under the Crown” at the time of his election, even though he had taken leave without pay.

Inquiry after inquiry in the last 35 years has recommended that Section 44 be modified.

A Senate standing committee in 1981 recommended that each of the five subsections be either amended or deleted, an opinion echoed by the report of the Constitutional Commission in 1988. In 1996 the House of Representatives Standing Committee on Legal and Constitutional Affairs recommended that a referendum question be prepared in order to modify Section 44.

Despite a number of Bills being debated over the ensuing six years, the constitutional requirement that such a Bill be passed by an absolute majority in both houses was never reached. Given the departure of two senators whose sin was to be born to our same Queen but under a different flag, it’s time for the knives to be out for Section 44 again.

Professor Rick Sarre is a law lecturer at Unisa.