The virtually certainty that the election of Jackie Kelly in the electorate of Lindsay on March 2 is to be over-turned reveals a defect in the Australian Constitution. Ms Kelly’s election is to be over-turned on what can only be described as an anachronistic technicality. She is to be disqualified because at the time of the election she was serving as a member of the armed forces and held both Australian and New Zealand citizenship.
Because she was in the armed services she offended Section 44(4) of the Constitution which says: “”A person who 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 shall be incapable of being chosen or of sitting as a senator of members of the House of Representatives”.
It means that public servants (federal and state) must stand aside while they contest the election. The reason the provision was included in 1900 was to retain the independence of the legislature from the executive arm of government and thereby retain the separation of powers. Conditions have changed since 1900 and the provision is no longer appropriate. Its folly can be demonstrated by asking why should a public servant be ineligible one day but the next day, after his or her organisation has been corporatised, be eligible? What possible reason is there in 1996 for insisting that members of the armed services stand aside while they contest an election? There can be no question of divided loyalties or the Crown somehow suborning new members of parliament. There is an argument that, after election, members should not engage in work for the executive government and be forced to resign from the public service or armed services, as presumably Ms Kelly has done.
As this section mentions the Crown, it will come under scrutiny in any change to a republic. It should be a prime candidate for repeal.
The citizenship questions is slightly different. Obviously, every candidate for parliament should be an Australian citizen. Moreover, they should not harbour any divided loyalty through dual citizenship. But many countries do not permit the shaking off of citizenship. In those cases the High Court has held that any reasonable action to renounce the second citizenship should be enough. But it should be a matter of mere formality at the time of nomination, without the need to communicate with the nation of second citizenship. Alternatively, the mere act of attending a citizenship ceremony should be demonstration enough of sole loyalty to Australia in the absence of subsequent overt acts to the contrary. Australia is mature enough to accept migrants’ word for it that they have renounced earlier loyalties.
Unfortunately, the Constitution, drafted as it was in 1900, does not talk of “”Australian citizenship”. Rather it says; “”Any person who is under any acknowledgement 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 shall be incapable of being chosen or of sitting as a senator or member of the House of Representatives.”
Those were in the days when people living in Australia were thought of as British subjects. Now, the High Court has ruled, being British (without Australian citizenship) is to be subject to a foreign power.
Once again the section should be the subject of any constitutional change that is put forward with the proposal for Australia to become a republic. It need not be contentious. It need state only that candidates for election must be Australian citizens.
The challenge to Ms Kelly’s election may be well-founded in law, but it is ill-founded in democratic principle. It is hypocritical and farcical for the Labor Party to avail itself of antiquate provisions about “”office of profit under the Crown” to upset an obviously democratic act by the people of Lindsay to elect Ms Kelly for a three-year term. Moreover, the conditions of March 2 cannot be repeated in a subsequent by-election after the technicalities have been repaired. It is likely that no-one was more surprised at her March 2 victory than Ms Kelly herself. She won an 11.8 per cent swing against the very thoughtful former Minister for Science Ross Free … a candidate with no especially negative attributes. The seat in Sydney’s west was one of a swag of traditional Labor seats that swapped hands in the general anti-Keating anti-Labor mood of the time. Given the events since it is likely that the seat will go back the other way … an event that should not have happened until 1999.
Also this week, the unsuccessful Labor candidate for the Northern Territory, Warren Snowden, challenged the result in which he missed the seat by 627 votes. His case is in a different category. He argues that special provisions that apply in the Northern Territory and the seat of Kalgoorlie and nowhere else might have cost him the seat. Those provisions require that people moving house from one sub-division to another within the electorate must re-enrol. Because of this 1500 votes had been excluded. Whatever its legal merits, this argument does not lack the democratic credentials that the Kelly case does.