The overturning of 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. Disqualification from standing as an MP of people who hold “”an office of profit under the Crown” and those who have not taken active steps to renounce non-Australian citizenship is not warranted, particularly in these days of a large public sector and multi-culturalism. Provided a person resigns his or her public-sector job upon being elected, there should be no problem. Provided a person is an Australian citizen on election day and has not taken up the citizenship of another country after becoming an Australian citizen, there should be no problem. The present requirement that a person renounce other citizenships is technical and irrelevant. The taking up of Australian citizenship of itself should be recognised as a pledge of primary loyalty to Australia and no further step should be required.
The present requirements are couched in out-dated language and have given rise to uncertainty and unacceptable technicality. It is absurd in Ms Kelly’s case that she be deemed ineligible to remain in Parliament because she was an officer in the Australian air force at the time of nomination and had failed to actively renounce her New Zealand citizenship beyond taking out Australian citizenship which she had done.
Section 44(4) of the Constitution says: “”Any person who …
Is under any acknowledgement or allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights and privileges of a subject or a citizen of a foreign power; or
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”.
That citizenship clause is laced with uncertainty and its meaning has changed over the years. It must be simplified.
The clause 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.
Obviously upon election an MP should not engage in work for the executive government and should resign from the public service or armed services.
Another clause provides that any person can sue someone disqualified like Ms Kelly for 100 pounds. It is absurd.
These clauses should be fixed at the next available referendum. Unfortunately, they can only be fixed by referendum because they are part of the Constitution. They are not matters which warrant a separate referendum but they should be tacked on to the next referendum that occurs. Indeed, as that might well be the question of a republic and these clauses involve “”the Crown”, it would be an appropriate addition.
The Leader of the Opposition, Kim Beazley, has already signalled his willingness to look at the question. After the heat of the by-election has subsided, all parties should come to an agreement on clearer guidelines to be put to a referendum.