Section 44 of the Constitution of Australia
44. Any person who -
- (i.) 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 citizen of a foreign power: or
- (ii.) 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
- (iii.) Is an undischarged bankrupt or insolvent: or
- (iv.) 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
- (v.) 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.
But sub-section 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.
Applications of the Section
Sykes v Cleary
In this judgement, the High Court voided the election of Phil Cleary 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 Hill, 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 a British citizen Hill 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 and took Hill's place in the Senate.
During the period in between her endorsement as a Liberal Party 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.
At the 2007 federal election, it was claimed by the Liberal Party that George Newhouse, 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.
- O'Brien, Sarah, Dual citizenship, foreign allegiance and s. 44(i) of the Australian Constitution, Background Papers, no. 29, Parliamentary Library, 1992
- Australian Electoral Commission - Nominations, Retrieved on 23 December 2007
- Requirements for APS employees seeking to contest an election, Australian Public Service Commission, Retrieved on 23 December 2007
- Kalokerinos, John, Who May Sit? An Examination of the Parliamentary Disqualification Provisions of the Commonwealth Constitution, p9, Parliament of Australia, June 2001
- Newhouse's election candidacy uncertain, Australian Broadcasting Corporation, 2007, retrieved 23 December 2007