Electoral Backgrounder: Constitutional disqualification and intending candidates

Purpose

Electoral Backgrounders are published by the Australian Electoral Commission (AEC) to provide a basic introduction to electoral law, policy and procedures for the information and guidance of all interested parties. The purpose of this Backgrounder is to assist intending candidates for election to the Parliament of Australia to understand their obligation to ensure that they are legally qualified to nominate and, in particular, that they are not disqualified by section 44 of the Constitution. The view of the operation of the law presented here is a general overview of the decisions of the Court of Disputed Returns (the Court), but in the final analysis it is for the Court to decide upon the interpretation of the law in its application to the facts that exist in any particular case. The following should not be regarded as being legal advice. Readers should not rely on the information in this document as a statement of how the law will apply in their particular circumstances. Accordingly, if you are in doubt about the application of the constitutional disqualification to your particular circumstances and your qualifications to nominate as a candidate in a Federal election you must seek your own independent legal advice. Further information about the nominations process is available in the AEC’s Nomination Guide for intending candidates.

Section 44 of the Constitution

Intending candidates must make themselves aware of the operation of section 44 of the Constitution which states as follows:

44 Disqualification

Any person who:

is under any acknowledgment 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; or is attainted of treason, or has been convicted and is under sentence, or subject to be sentenced, for any offence punishable under the law of the Commonwealth or of a State by imprisonment for one year or longer; or is an undischarged bankrupt or insolvent; 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; or has any direct or indirect pecuniary interest in any agreement with the Public Service of the Commonwealth otherwise than as a member and in common with the other members of an incorporated company consisting of more than twenty‑five persons;

shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.

Subsection (iv) does not apply to the office of any of the Queen’s Ministers of State for the Commonwealth, or of any of the Queen’s Ministers for a State, or to the receipt of pay, half pay, or a pension, by any person as an officer or member of the Queen’s navy or army, or to the receipt of pay as an officer or member of the naval or military forces of the Commonwealth by any person whose services are not wholly employed by the Commonwealth.

The role of the AEC

It is the responsibility of each prospective candidate to establish whether or not they may be subject to the disqualification in section 44 of the Constitution. The AEC administers the Commonwealth Electoral Act 1918 (Electoral Act) in relation to the conduct of federal elections. The AEC does not administer the Constitution as is made clear by the Administrative Arrangements Order made by the Governor-General. The administration of the Constitution is the responsibility of the Attorney-General’s Department. Accordingly, the AEC is not in a position to provide advice or to disqualify any candidates due to the operation of section 44 of the Constitution. The Electoral Legislation Amendment (Modernisation and Other Measures) Act 2019 changed, amongst other things, the candidate nominations process for elections by requiring intending candidates for an election to complete a qualification checklist to demonstrate their eligibility to be elected to Parliament under section 44 of the Australian Constitution. Additional documents may be required to support the nomination. Further information on the recent changes to the nominations process for elections is available here. As is made clear by subsection 170A(2) of the Electoral Act, the AEC does not have the power to determine the eligibility of any candidate on the basis of information provided in the nomination form, qualification checklist or any additional documentation. Section 172 of the Electoral Act sets out the only grounds upon which the AEC is able to reject a nomination of a candidate. Those grounds do not include disqualifying a candidate under the Constitution. If a candidate has completed the answer to the questions asked on the nomination form, has answered the mandatory questions in the qualification checklist about being qualified under the Constitution, and has paid the relevant deposit, the AEC is legally required to accept the nomination. The Electoral Act does not provide the AEC with the authority to conduct checks on whether intending candidates may be disqualified by the operation of section 44 of the Constitution. This is particularly the case given the complexities of the operation of the five grounds for disqualification that are contained in section 44 of the Constitution and the short timeframe between the close of nominations, the declaration of nominations and the commencement of early voting. Any disqualification of a candidate due to the operation of section 44 of the Constitution can only be determined by the High Court sitting as the Court of Disputed Returns after an election. The AEC publishes a Candidates Handbook, and a Nominations Guide that provides information on the electoral process for people intending to nominate as candidates in the election.

The Court of Disputed Returns

The issue of any disqualification of a candidate due to the operation of section 44 of the Constitution is a matter that can only be determined by the High Court sitting as the Court of Disputed Returns under Part XXII of the Electoral Act. This is particularly the case where a candidate has been successful in being elected to the Parliament. There are a number of decisions of the CDR where a person has either sat in the Parliament and has subsequently been found by the Court to have been disqualified or been returned as elected by the AEC and found to have been disqualified at the time of nomination before they have actually sat in the Parliament. Previous cases include In re Wood [1988} HCA 22, Sykes v Cleary [1992] HCA 60, Free v Kelly [1996] HCA 42, Sue v Hill [1999] HCA 30; Re Culleton (No. 2) [2017] HCA 4, Re Day (No. 2) [2017] HCA 14, Re Canavan; Re Ludlam; Re Waters; Re Roberts [No 2]; Re Joyce; Re Nash; Re Xenophon [2017] HCA 45, Re Nash (No.2) [2017] HCA 52, Re Lambie [2018] HCA 5, Re Gallagher [2018] 17.

Section 44 of the Constitution - grounds for disqualification

A person is disqualified from nominating as a candidate or sitting in the Parliament where the person becomes subject to any of the five conditions listed in this section:

Section 44(i)

Section 44(i) of the Constitution applies to two categories of persons: a person who is “under any acknowledgement of allegiance, obedience or adherence to a foreign power”; and

a person who “is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power.” The first category of disqualification under section 44(i) captures any “person who has formally or informally acknowledged allegiance, obedience or adherence to a foreign power and who has not withdrawn or revoked that acknowledgement”. The second category of disqualification under section 44(i) captures a state of affairs involving the existence of a status or of rights under the law of a foreign power. It applies to persons who have certain rights because of a formal citizenship link with a foreign power, and therefore to any person who holds dual or plural citizenship. In the 1992 case of Sykes v Cleary [1992] HCA 60; the Court found that candidates are disqualified from election to Parliament if they do not take "all reasonable steps" to renounce their other citizenship before nomination. In the more recent matters of Re Canavan; Re Ludlam; Re Waters; Re Roberts [No 2]; Re Joyce; Re Nash; Re Xenophon [2017] HCA 45, Re Gallagher [2018] 17 the Court upheld the approach taken by the majority of Justices in Sykes v Cleary. That is, to give section 44(i) its ordinary and natural meaning, subject only to the implicit qualification in section 44(i) that the foreign law conferring for foreign citizenship must be consistent with the Constitutional purpose of the provision. The Court has made it clear that whether a person has the status of a subject or a citizen of a foreign power necessarily depends upon the law of the foreign power. That is so because it is only the law of the foreign power that can be the source of the status of citizenship or of the rights and duties involved in that status. Accordingly, it is essential that candidates rigorously check their ancestry and to obtain their own legal advice on whether they may be a citizen of a foreign power. The Court has also held that an Australian citizen who is also a citizen of a foreign power will not be prevented from participating in the representative form of government ordained by the Constitution by reason of a foreign law which would render an Australian citizen irremediably incapable of being elected to either house of the Commonwealth Parliament. As is apparent, to rely upon this approach is conditional on both an analysis of the action taken by the intending candidate and the effect of the overseas law. Intending candidates will need to obtain clear legal advice on whether their circumstances are able to fit within this aspect of section 44(i) of the Constitution. The cases make it clear that if the issue of overseas citizenship is not resolved by the close of candidates’ nominations, then it is likely that the candidate will not be qualified to stand for election due to the operation of section 44 of the Constitution.

Section 44(ii)

Section 44(ii) of the Constitution applies to two categories of persons: a person “attainted by treason”; and

a person who has been convicted and is under sentence or subject to be sentenced. The first category of disqualification would probably only apply where the person has actually been convicted of the offence of “treason” contained in section 80.1 of the Criminal Code Act 1995. The second category of disqualification is that the person is actually under sentence or is subject to be sentenced for any offence against the law of the Commonwealth or a State that carries a sentence of 12 months imprisonment or longer. As an example, in the matter of Re Culleton [No. 2] [2017] HCA 4 the Court was asked to consider whether Senator Culleton may have at the time of nomination as a candidate, been “convicted and under sentence or subject to be sentenced for an offence punishable under the law of the Commonwealth or of a State by imprisonment for one year or longer” contrary to subsection 44(ii) of the Constitution. The Court held that despite the subsequent annulment of the conviction, that at the time of the nomination as a candidate, Senator Culleton was subject to be sentenced for the offence of larceny in NSW. This offence was punishable by imprisonment for a period of up to five years; but where the value of the property in respect of which the offence is charged does not exceed $5,000, the maximum term of imprisonment that the Local Court may impose is two years. The offence of which Senator Culleton was convicted concerned property of a value less than $2,000. Accordingly, he was liable to imprisonment for a maximum term of two years. The Court concluded that he was therefore disqualified under Section 44(ii) of the Constitution contrary to subsection 44(ii) and therefore his election was invalid and his place was vacant under section 45 of the Constitution. The Court ordered a special recount of Senate ballot papers in the state in which he was elected (Western Australia).

Section 44(iii)

Section 44 (iii) of the Constitution disqualifies a person if they are an undischarged bankrupt or insolvent. While there have been no specific decisions on the scope of section 44(iii) this appears to be able to be established as a question of fact as to whether or not a person has been made a bankrupt and whether the period of bankruptcy has concluded or been discharged. The Full Federal Court decisions in Culleton v Balwyn Nominees Pty Ltd [2017] FCAFC 8 contains a brief discussion of section 44(iii) and section 45 of the Constitution. The AEC notes that the Australian Financial Security Authority (AFSA) is required to maintain the Bankruptcy Register and The National Personal Insolvency Index (NPII) which contain a publicly available and permanent electronic record of all personal insolvency proceedings in Australia.

Section 44(iv)

Section 44(iv) of the Constitution applies to two categories of persons: a person who holds a an office of profit under the Crown; and

a person in receipt of a pension payable during the pleasure of the Crown out of any revenues of the Commonwealth. The scope of the subsection 44(iv) disqualification was considered in the cases of Sykes v Cleary [1992] HCA 60 and Free v Kelly [1996] HCA 42. Mr Cleary was disqualified by the Court of Disputed Returns because he was, at the time of his nomination, a Victorian State school teacher on leave without pay. Ms Kelly was disqualified by the Court of Disputed Returns because she was, at the time of her nomination, a serving member of the Australian Defence Force who was regarded by the Court to be 'wholly employed' by the Commonwealth. Therefore, the exception to subsection 44(iv) of the Constitution noted above did not apply to her. Both of these occupations are then clearly to be regarded as "offices of profit under the Crown", and by implication, all Federal and State public servants and serving members of the Australian Defence Force would be disqualified from standing for election. This appears to apply even if the person is "unattached", or on leave without pay, and not currently in receipt of remuneration. The most recent case dealing with an office of profit under the Crown is Re Nash [No 2] {2017] HCA 52 which followed the finding that Ms Nash was disqualified due to the operations of section 44(i) of the Constitution and the direction given for a special count of ballot papers to be conducted to fill the vacancy. The relevant facts of Re Nash [No 2] are that following a special count of the ballot papers for the senate for the State of New South Wales, whereby Ms Nash was excluded from the count, Ms Hollie Hughes was identified by the AEO for NSW as the possible replacement to fill the vacancy. Questions arose as to the eligibility of Ms Hughes to be returned as duly elected because on 15 June 2017 Ms Hughes was appointed to the position of a part-time member of the Administrative Appeals Tribunal for a period of seven years commencing on 1 July 2017. Note that polling day for the relevant federal election was 2 July 2016. Ms Hughes held this position from 1 July 2017 until resigning by email some 45 minutes after the Court handed down the decision finding Ms Nash to be disqualified by virtue of section 44(i) of the Constitution on 27 October 2017. It was accepted by all parties that the position held by Ms Hughes between 1 July 2017 and 27 October 2017 could be characterised as fitting the description of an “office of profit under the Crown" within the meaning of subsection 44(iv) of the Constitution. The concept of “being chosen” has been judicially considered to mean the “process of being chosen, or which nomination is an essential part.” The question of when the process of being chosen ends was not raised in Sykes v Cleary nor in Free v Kelly. The Court accepted in Re Nash [No 2] that the question of the temporal end-point of “the process of being chosen”, during which a disqualification under section 44 takes effect, is one which has been left unanswered by binding authority. In answering this question the Court held that the process of choice under section 7 of the Constitution had not be completed in respect of a place for which the person returned is subsequently found to be affected by a disability as described by sections 44 and 45 of the Constitution. The Court explained that Ms Hughes’ acceptance of the appointment to the Administrative Appeals Tribunal was a voluntary step taken “in circumstance where reference by the Senate to the Court of Disputed Returns of a question concerning whether a vacancy existed by reason of the disqualification or lack of qualification of a senator who had been returned as elected was always a possibility. By choosing to accept the appointment for the future, Ms Hughes forfeited the opportunity to benefit in the future from any special court of the ballot papers that might be directed as a result of such a vacancy being found.” The issue of whether the holding of an office involving merely the reimbursement of expenses, say in relation to the membership of boards or serving as a Local Government councillor was addressed by the Court in Re Lambie{2018] HCA 6. This case involved whether Mr Steven Martin who held the offices of mayor and councillor of the Devonport City Council was incapable of being chosen or of sitting as a Senator to fill the vacancy created by the resignation of Ms Lambie. The Court stated that the reference to the “Crown” is a reference to the executive government and this encompasses the executive government of a State as well as the executive government of the Commonwealth. The Court stated that there was no dispute that the offices of mayor and of councillor of a local government corporation each answer the description of an “office of profit” as each is a position of a public character constituted under governmental authority (e.g. the Local Government Act), to which duties and emoluments are attached. However the Court held that the offices held by Mr Martin were not “under” the Crown. The Court stated that the resolution of the issue was a combination of two overarching considerations. The first being the “limiting effect on democratic participation telIs in favour of an interpretation which gives the disqualification [in section 44(iv)] the greatest certainty of operation that is consistent with its language and purpose”. The second being the “principal mischief” to which section 44(iv) is directed in terms of “eliminating or reducing … executive influence over the House”. This protects the framework of responsible government by ensuring the capacity for the Houses of Parliament to check on executive action. The Court concluded that section 44(iv) is quite narrowly tailored to eliminate a particular form of conflict of duty and interest. An office of profit is “under” the Crown if the holding of the office or continued holding of the office, or the receipt of profit from it, depends on the will or continuing will of the executive arm of the Commonwealth or of a State. At paragraph 29 of the decision in Re Lambie, the Court made some observations on the second clause of section 44(iv) of a person who holds a pension payable during the pleasure of the Crown. The Court cited with approval the comment made by Sir Samuel Griffith that its object was “to prevent persons who are dependent for their livelihood upon government, and who are amenable to its influence, from being members of the legislature”. It would appear that Assistant Ministers are not at risk in this regard, and Parliamentary Secretaries are governed by the Parliamentary Secretaries Act 1980, which is designed to remove the risk of disqualification under section 44(iv) of the Constitution. While Senators-elect do not hold offices of profit under the Crown, they should exercise caution in any chosen form of employment while waiting to take their seats. It should be noted that the concluding words of section 44 of the Constitution specifically excludes from the disqualification under section 44(iv) Commonwealth and State Government Ministers and Members of the ADF and Public Servants who are in receipt of pensions.

Section 44(v)

Section 44(v) of the Constitution applies to a person who has a direct or indirect pecuniary interest in any agreement with the Public Service of the Commonwealth. The most recent case to consider section 44(v) of the Constitution is that of Re Day (No. 2) [2017] HCA 14. Despite Mr Day having resigned by the Senate, the Senate referred the issue of his possible disqualification to have nominated as a candidate at the 2016 election to the CDR. The issue raised by the reference is whether Mr Day had a direct or indirect pecuniary interest, of a kind prohibited by section 44(v) of the Constitution, in a lease agreement between the owner of his electorate office premises in South Australia, as lessor, and the Commonwealth, as lessee.

Filling the vacancy

Section 45 of the Constitution provides that where a Senator or Member of the House of Representatives is disqualified by the operation of section 44 (i.e. as the result of a ruling by the Court of Disputed Returns), their place in the Parliament becomes vacant. In short there are several two possible ways for filling such a vacancy. First, where the disqualified persons was a sitting Senator, the Court of Disputed Returns orders the AEC to conduct a special count before it decides whether to make an order declaring another candidate to have been returned as being elected under section 360 of the Electoral Act. This process was followed in several cases including In re Wood, Sue v Hill, Re Culleton (No. 2), Re Day (No. 2), Re Ludlam; Re Waters; Re Roberts [No 2]; Re Nash, Re Nash (No.2) and Re Kakoschke-Moore [2018] HCA 10;

Second, where the disqualified person is a sitting Member of the House of Representatives, the CDR will order a by-election. This process was followed in several cases including Sykes v Cleary, Free v Kelly and Re Joyce. The principle on how to deal with filling vacancies following the finding of a disqualification under section 44 is a settled area of law. This principle was surmised in Free v Kelly and the AEC [No 2] HCA 42: “…an election in which a person who is incapable of being chosen is purportedly returned as a member of the Senate or as a member of the House of Representatives will not warrant an order for a special count unless a special count would reflect to voters’ true legal intent or, conversely, would not result in a distortion of the voter’ real intentions.” The Court then agreed with the comments made in Sykes v Cleary that there was a distinction that resulted from the group voting process that applies in Senate voting as opposed to the full preferential voting that applies to voting for candidates to be elected to the House of Representatives as follows: “In these circumstances, the situation in In re Wood was such as to warrant the conclusion that the special count would reflect the voters' 'true legal intent' (12). Furthermore, in the light of the group system of voting which applies in Senate elections, it was highly probable, if not virtually certain, that a person who voted for Mr Wood would have voted for another member of his group, had the voter known that Mr Wood was ineligible. The same comment cannot be made in the present case. Here a special count could result in a distortion of the voters' real intentions because the voters' preferences were expressed within the framework of a larger field of candidates presented to the voters by reason of the inclusion of the first respondent." The above difference is also contained in the Electoral Act where a candidate dies between the declaration of nominations and polling day. For a Senate candidate, subsection 273(27) of the Electoral Act provides that the votes should be counted with the preferences adjusted accordingly polling day. For a House of Representatives candidate, subsection 180(2) of the Electoral Act provides that the election wholly fails and a new writ must be issued for a supplementary election (commonly referred to as a by-election - see section 181 of the Electoral Act).

Casual vacancy

Where a sitting Member of the House of Representatives resigns or dies, this creates a vacancy which must be filled by the issuing of the writs for a by-election (see section 33 of the Constitution). However, where a sitting Senator resigns or dies (rather than being disqualified) this creates a casual vacancy which is able to be filled by the process set out in section 15 of the Constitution. The purpose of section 15 is to preserve as much as possible the proportional representation determined by the electors in elections for the Senate. The main features of section 15 are: The relevant State Parliament represented by the vacating Senator choose a person to fill the place until the expiration of the term.

If the Parliament is not in session, then the Governor may appoint the person;

A person chosen is to be, where relevant and possible, a member of the same party of the Senator whose death or resignation gave rise to the vacancy.

Other legal action

There is one other legal proceeding that should be mentioned. The High Court is given jurisdiction to determine matters under the Common Informers (Parliamentary Disqualifications) Act 1975 (the Common Informers Act). This Act has replaced the operation of section 46 of the Constitution which provides that the section only operates “Until the Parliament otherwise provides”. Subsection 3(1) of the Common Informers Act states that: “Any person who, whether before or after the commencement of this Act, has sat as a senator or as a member of the House of Representatives while he or she was a person declared by the Constitution to be incapable of so sitting shall be liable to pay to any person who sues for it in the High Court a sum equal to the total of: $200 in respect of his or her having so sat on or before the day on which the originating process in the suit is served on him or her; and $200 for every day, subsequent to that day, on which he or she is proved in the suit to have so sat.” In determining matters under this Act the High Court is not sitting as the Court of Disputed Returns. Accordingly, it would appear that the Court would not be able to actually disqualify a Member of Parliament due to the operation of section 44 of the Constitution. This position was upheld by the High Court in the case of Alley v Gillespie [2018] HCA 11. This case involved Interpretation of section 44(v) and section 46 of the Constitution. Mr Alley the Labor candidate for Lyne at the 2016 election claim that Dr Gillespie is incapable of sitting due to the operation of section 44(v) of the Constitution as he has a pecuniary interest in the lease of premises to Australia Post.

Fraud

In relation to the issue of potential fraud in relation to the completion of the candidate nomination form, this does not fall within the jurisdiction of the AEC as the relevant fraud provisions are contained in the Criminal Code Act 1995 which is administered by the Attorney-General's Department. The investigation of possible fraud offences in the present circumstances is a matter for the Australian Federal Police (AFP) which was part of the Attorney-General’s portfolio at the relevant time. Accordingly, questions relating to the interpretation of the Criminal Code Act 1995 and any possible action for fraud in these matters would need to be directed to that Department and the AFP. Further the conduct of any possible prosecution would be a matter for determination by the Commonwealth Director of Public Prosecutions. The AEC has no power to lay charges or to commence prosecution action on these matters. However, as far as the AEC is aware no prosecutorial action was undertaken in any of the previous cases where a person was disqualified by the operation of section 44 of the Constitution. Given the complexities of the overseas citizenship laws and other matters contained in section 44 of the Constitution that were addressed by the Court in these cases, it would appear that such action is unable to be taken due to the difficulties in proving the existence of all of the elements of such an offence. The AEC notes that the elements of the offence in sections 136.1 and 137.1 of the Criminal Code Act 1995 give rise to the defence contained in Division 5 and include whether the person knowingly provided false or misleading information in their candidate nomination forms. The AEC is not aware of any findings by the Court in these matters that any of these persons knowingly provided false or misleading information. In the absence of any such information to address this key issue, the AEC is unable to make any such referral to the AFP. The AEC also notes that it has not been a party to the proceedings in these matters before the Court of Disputed Returns and that these matters have been pursued under the instructions of the Attorney-General. Accordingly, the AEC does not have access to all of the information that would be necessary for the AEC to consider making any referral to the AFP in these matters. In relation to the issue of any action to recover parliamentary salaries and entitlements that have previously been paid to persons who have been disqualified by the Court of Disputed Returns, the AEC has no role or power to obtain such information as we do not administer the relevant laws under which these monies have been paid.

The Electoral and Referendum Amendment (Eligibility) Regulations 2018 can be accessed at the Australian Government’s Federal Register of Legislation.

Endnotes The Commonwealth Electoral Act 1918 can be accessed through any major public library, or the Australian Government’s Federal Register of Legislation. Further information in relation to compliance with the Act is set out in the AEC's Electoral Backgrounder publications.