In 2017, s. 44 of the Australian Constitution became the subject of national attention when a number of Senators and Members were either found by the High Court to be ineligible to sit, or resigned due to factors relating to potential ineligibility. As a consequence, three by-elections have been held, four more are scheduled to fill seats in the House of Representatives, nine Senators have been replaced, and a vacancy now exists for a senator for the ACT.
Until this time, there have been few High Court cases concerning s. 44 meaning recent judgments have provided the best understanding of the Court’s interpretation of its operation. We now know that:
- A person who has a criminal conviction which is later quashed can be ineligible.
- A person who holds or is eligible for dual citizenship cannot nominate as a candidate and serve in Parliament. With eligibility for foreign citizenship subject to the laws of other countries, the eligibility of elected members of the Australian Parliament is therefore subject to foreign laws.
- An employee in the public sector must resign their employment to nominate for election.
- A person who holds or gains Commonwealth employment after the election has been declared, may not be eligible for a vacancy that arises in the Parliamentary term.
- While public commentary has focussed on whether dual citizens should be allowed to serve in our national Parliament, the consequence of the Court’s recent rulings is that many ordinary Australians are now ineligible to stand for election by virtue of their citizenship status or employment as a public official (including nurses, firefighters and teachers). This debate reaches far beyond the focus of public commentary to date, that members of the 45th Parliament ‘should have got their paperwork right’.
This report makes no comment on what today should be the most appropriate qualifications and disqualifications for parliamentarians. This is a matter that should be decided after a national, and parliamentary, debate. It is for the Australian public to decide on the qualifications of their elected representatives.