Section 44 of the Australian Constitution
Encyclopedia
Section 44 of the Australian Constitution is a section of the Constitution of Australia
that deals with restrictions on who may become a candidate for election to the Parliament of Australia
. Subsection 44(i) asserts that any person "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 citizen of a foreign power" is not eligible to stand for Parliament. This has generally been interpreted as meaning that persons with dual citizenship are not permitted to stand. Additionally, subsection 44(iv) prohibits anyone 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" from serving in Parliament.
in a 1992 by-election, contending that he had been acting in an office for profit under the crown. At the time of his election, Cleary had been on leave without pay from his job as a teacher in the Victorian state system. The precedent set by this judgement held that public servants had to resign from the public service before nominating. In the wake of this decision, the Commonwealth Public Service made provisions for public servants to be automatically re-engaged should they resign to run for office and be unsuccessful.
, a woman with dual British-Australian citizenship was elected to the Australian Senate
as a senator for Queensland
. Henry Sue, a voter from Queensland, appealed to the High Court of Australia
, sitting in its capacity as the Court of Disputed Returns
. Chief Justice Murray Gleeson
ruled that the United Kingdom qualified as a "foreign power" under section 44(i), and as Hill was a British citizen was therefore unable to take up her Senate seat. As a result, Len Harris
, the second One Nation party candidate on the ballot was elected in Hill's place, and took Hill's place in the Senate.
senator in the 1996 election and taking her seat on 1 July of that year, Jeannie Ferris
had been employed by Senator Nick Minchin
. It was unclear at the time whether this constituted holding an "office of profit under the Crown" as specified in sub-section iv. To avoid the possibility of her election being declared invalid, Ferris resigned from the Senate only to be immediately re-appointed to fill the casual vacancy
she had created by the Parliament of South Australia
.
, the high-profile Australian Labor Party
candidate for the seat of Wentworth
, was ineligible to stand for parliament under sub-section v of Section 44. In particular, it was alleged that Newhouse had not resigned from the New South Wales Consumer Disputes Tribunal and so was maintaining "an office for profit under the crown". Liberal frontbencher
Andrew Robb
claimed that a by-election
would have been necessary in Wentworth if Newhouse were to win the seat, due to his ineligibility. The matter never came to a head though, as Newhouse was comfortably defeated by the incumbent Liberal Party candidate and federal Minister Malcolm Turnbull
.
Constitution of Australia
The Constitution of Australia is the supreme law under which the Australian Commonwealth Government operates. It consists of several documents. The most important is the Constitution of the Commonwealth of Australia...
that deals with restrictions on who may become a candidate for election to the Parliament of Australia
Parliament of Australia
The Parliament of Australia, also known as the Commonwealth Parliament or Federal Parliament, is the legislative branch of the government of Australia. It is bicameral, largely modelled in the Westminster tradition, but with some influences from the United States Congress...
. Subsection 44(i) asserts that any person "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 citizen of a foreign power" is not eligible to stand for Parliament. This has generally been interpreted as meaning that persons with dual citizenship are not permitted to stand. Additionally, subsection 44(iv) prohibits anyone 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" from serving in Parliament.
Sykes v Cleary
In this judgement, the High Court voided the election of Phil ClearyPhil Cleary
Philip Ronald Cleary is an Australian commentator on politics and sport, particularly Australian rules football, and a former independent politician elected at the 1992 Wills by-election.-Football playing career:...
in a 1992 by-election, contending that he had been acting in an office for profit under the crown. At the time of his election, Cleary had been on leave without pay from his job as a teacher in the Victorian state system. The precedent set by this judgement held that public servants had to resign from the public service before nominating. In the wake of this decision, the Commonwealth Public Service made provisions for public servants to be automatically re-engaged should they resign to run for office and be unsuccessful.
Sue v Hill
At the 1998 federal election, Heather HillHeather Hill
Heather Hill is a former English-Australian politician.Hill was born in 1960 in London. In 1971 her family moved to Australia, arriving in Brisbane, Queensland on 6 October of that year. She attended school in Brisbane...
, a woman with dual British-Australian citizenship was elected to the Australian Senate
Australian Senate
The Senate is the upper house of the bicameral Parliament of Australia, the lower house being the House of Representatives. Senators are popularly elected under a system of proportional representation. Senators are elected for a term that is usually six years; after a double dissolution, however,...
as a senator for Queensland
Queensland
Queensland is a state of Australia, occupying the north-eastern section of the mainland continent. It is bordered by the Northern Territory, South Australia and New South Wales to the west, south-west and south respectively. To the east, Queensland is bordered by the Coral Sea and Pacific Ocean...
. Henry Sue, a voter from Queensland, appealed to the High Court of Australia
High Court of Australia
The High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, has the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the States, and...
, sitting in its capacity as the Court of Disputed Returns
Court of Disputed Returns
The Court of Disputed Returns is a court, or a tribunal, or some other body that determines disputes about elections in some common law countries. Sometimes the court may be known by another name, such as the Court of Disputed Elections...
. Chief Justice Murray Gleeson
Murray Gleeson
Anthony Murray Gleeson AC QC is a former Chief Justice of the High Court of Australia, the highest court in the Australian court hierarchy.-Biography:Gleeson was born in Wingham, New South Wales, the eldest of four children...
ruled that the United Kingdom qualified as a "foreign power" under section 44(i), and as Hill was a British citizen was therefore unable to take up her Senate seat. As a result, Len Harris
Len Harris
Leonard William Harris was an Australian politician who was the only One Nation representative to gain a seat in the Australian Parliament as a Senator from the state of Queensland...
, the second One Nation party candidate on the ballot was elected in Hill's place, and took Hill's place in the Senate.
Jeannie Ferris
During the period in between her endorsement as a Liberal PartyLiberal Party of Australia
The Liberal Party of Australia is an Australian political party.Founded a year after the 1943 federal election to replace the United Australia Party, the centre-right Liberal Party typically competes with the centre-left Australian Labor Party for political office...
senator in the 1996 election and taking her seat on 1 July of that year, Jeannie Ferris
Jeannie Ferris
Jeannie Margaret Ferris was an Australian politician, lobbyist, journalist, and Liberal Senator for South Australia. She was educated at Monash University, where she graduated in agricultural economics....
had been employed by Senator Nick Minchin
Nick Minchin
Nicholas Hugh "Nick" Minchin is a former Australian politician, serving as a Liberal member of the Australian Senate representing South Australia from July 1993 to June 2011, and a former cabinet minister in the Howard Government....
. It was unclear at the time whether this constituted holding an "office of profit under the Crown" as specified in sub-section iv. To avoid the possibility of her election being declared invalid, Ferris resigned from the Senate only to be immediately re-appointed to fill the casual vacancy
Casual vacancy
In the Parliament of Australia, a casual vacancy is caused when a member of either house :* dies* resigns mid-term * is expelled from Parliament and their seat is declared vacant, or...
she had created by the Parliament of South Australia
Parliament of South Australia
The Parliament of South Australia is the bicameral legislature of the Australian state of South Australia. It consists of the Legislative Council and the House of Assembly. It follows a Westminster system of parliamentary government....
.
George Newhouse
At the 2007 federal election, it was claimed by the Liberal Party that George NewhouseGeorge Newhouse
George Newhouse is an Australian human rights lawyer, a former local councillor and political activist. He was Mayor of Waverley in the eastern suburbs of Sydney from 2006 to 2007, and the Australian Labor Party candidate for the seat of Wentworth at the 2007 Australian federal election...
, the high-profile Australian Labor Party
Australian Labor Party
The Australian Labor Party is an Australian political party. It has been the governing party of the Commonwealth of Australia since the 2007 federal election. Julia Gillard is the party's federal parliamentary leader and Prime Minister of Australia...
candidate for the seat of Wentworth
Division of Wentworth
The Division of Wentworth is an Australian Electoral Division in the state of New South Wales. It was proclaimed in 1900 and was one of the original 75 divisions contested at the first federal election. The Division is named after William Charles Wentworth , a noted Australian explorer and statesman...
, was ineligible to stand for parliament under sub-section v of Section 44. In particular, it was alleged that Newhouse had not resigned from the New South Wales Consumer Disputes Tribunal and so was maintaining "an office for profit under the crown". Liberal frontbencher
Frontbencher
In many parliaments and other similar assemblies, seating is typically arranged in banks or rows, with each political party or caucus grouped together. The spokespeople for each group will often sit at the front of their group, and are then known as being on the frontbench and are described as...
Andrew Robb
Andrew Robb
Andrew John Robb AO , Australian politician and former federal Director of the Liberal Party of Australia, was elected to the House of Representatives as member for the Division of Goldstein, Victoria for the Liberal Party of Australia at the 2004 federal election.Robb, one of nine children, was...
claimed that a by-election
By-election
A by-election is an election held to fill a political office that has become vacant between regularly scheduled elections....
would have been necessary in Wentworth if Newhouse were to win the seat, due to his ineligibility. The matter never came to a head though, as Newhouse was comfortably defeated by the incumbent Liberal Party candidate and federal Minister Malcolm Turnbull
Malcolm Turnbull
Malcolm Bligh Turnbull is an Australian politician. He has been a member of the Australian House of Representatives since 2004, and was Leader of the Opposition and parliamentary leader of the Liberal Party from 16 September 2008 to 1 December 2009.Turnbull has represented the Division...
.