In Defence of Section 44 of Australia’s Constitution

Scott Ludlam’s carelessness in failing to check if he still had New Zealand citizenship before running for parliament has put Section 44 of Australia’s Constitution into the political spotlight. Section 44 forbids dual citizens from sitting in the federal parliament, along with those who are bankrupt, been convicted of certain crimes or treason, a public servant or receives a profit from the crown. Ludlam resigned from the Senate last Friday after his dual citizenship was revealed after an investigation by barrister John Cameron.

Ever since his resignation supporters of Ludlam have started decrying the supposed injustice of Section 44 and suggesting it is time for reform. The Australian Greens actually have a policy to amend Section 44 to allow for dual citizens to run for office. Former Democrats leader Natasha Stott Despoja has been one of those voices, claiming that because of Section 44 the parliament can lose good talent. Former Labor Minister Graham Richardson claimed it was good enough that Ludlam had been in Australia since age 3 and claimed he should not have had to resign.

Part of the argument for reform of Section 44 is that it is outdated, at the time of its writing Australian citizenship did not exist. Australians were British subjects until the passage of the Nationality and Citizenship Act 1948. It was also argued that this provision of the constitution was never meant to exclude citizens of fellow commonwealth countries such as New Zealand and United Kingdom, who appear to be those deemed to be ineligible under Section 44 by our courts most of the time.

But Section 44 should remain, especially in this day and age when our politicians seem to have more adherence to a globalist agenda, which leads to the dilution of national sovereignty and loss of decision making power from ordinary citizens. The last thing we need is to have legislators in this country who could be influenced by the fact they are citizens of another country. That could make them discharge their law-making duties as a global citizen, rather than an Australian citizen. Australians certainly would not like to have a politician who had dual citizenship with a Middle Eastern dictatorship.

And yes, it should apply to citizens of other Commonwealth countries. Although it is highly unlikely that two nations of the Commonwealth would go to war with each other, they can have their differences from time to time. In fact, recently New Zealand Prime Minister Bill English claimed that relations with Australia could be strained over proposed changes to Australian citizenship laws. Although we all have the Queen as our head of state, all Commonwealth nations have their own national interest.

Australia is still very generous to permit dual citizenship to exist at all, many nations around the world do not allow it for any citizens, for the reason of the potential for divided loyalties. It is not too much to ask that if you wish to seek political office in Australia to remove any conflicts of interest. Those who say Ludlam’s disqualification is an unfair technicality, remember that our legal system is designed to be consistent, and technicalities although might appear unfair are necessary for the law to be applied consistently.

Australia does not go as far as the United States Constitution where only natural born citizens can be elected President. Both Julia Gillard and Tony Abbott were born in the United Kingdom, though no Australians really had a problem with that aspect of these Prime Ministers.

But our founding fathers did get Section 44 of the Constitution right and if advocates of reform did propose a referendum to allow dual nationals to run for parliament it would be overwhelming voted down. Politicians with foreign interests is the last thing our citizens want. All people who wish to seek political office need to do is their due diligence with regard to their eligibility. If Ludlam was so grossly incompetent with performing this basic task then maybe he was not a good talent to have in parliament anyway. As with the rest of the Constitution, Section 44 ain’t broke, so don’t fix it.

  • Bunyip

    Ludlam’s claims about his financial status are incredulous which if true, makes him an unfit person to hold elected office and not a person to be trusted with “helping the economy”. That he couldn’t save money while receiving ~~$200,000 plus all the other perks = gross financial mismanagement
    Make him pay the lot back WITH INTEREST

  • mbitsko50

    Section 44(i) has its origins in
    the ‘British North America Act 1867’ which created the ‘Canadian’
    confederation from the remaining British North American colonies. The
    U.S. Constitution has an open invitation to the Canadian provinces to
    become part of the United States so the Colonial Office in London
    thought it prudent that Canadian legislatures not have members with ties
    to the U.S. Also Quebec had a French speaking majority whose allegiance
    to the Crown might be compromised by any connection with republican
    France.

    The section regarding disqualification of parliamentarians read as follows:

    “If
    he takes an Oath or makes a Declaration or Acknowledgment of
    Allegiance, Obedience, or Adherence to a Foreign Power, or does an Act
    whereby he becomes a Subject or Citizen, or entitled to the Rights or
    Privileges of a Subject or Citizen, of a Foreign Power:”

    The
    1892 draft what was to become the ‘Commonwealth of Australia Act 1901’
    had as the disqualification for standing for federal parliament, just
    “Is under any acknowledgement of allegiance, obedience, or adherence to a
    foreign power.”

    However what went to the Parliament
    at Westminster in 1900 had added “or is a subject or a citizen or
    entitled to the rights or privileges of a subject or citizen of a
    foreign power:”
    See: The current High Court Judgement and the ‘two limbs’ of section 44(i).
    http://eresources.hcourt.gov.au/showCase/2017/HCA/45

    The
    final and current version has the fingers of the Colonial Office all
    over it – noting that at the time a particular concern of the British
    Empire was the expansion of the United States into the Pacific with
    annexations of Hawaii (whose independence had been guaranteed by
    Britain) and the Spanish Philippines – both in 1898.

    It
    is also somewhat ironic that the Parliament at Westminster which
    created the Australian Federation has currently no bar on dual citizens
    standing for or sitting in it. (Also the Canadians when they modernised
    their constituion some 35 years ago removed any bar to dual-citizens
    standing for parliament.)

    Note too that a Parliamentary Committee 20 years ago recommended reform of section 44(i)
    http://www.aec.gov.au/…/backgrounders/s44-constitution.htm
    but the politicians appear to have believed that the electorate was too
    ignorant, and/or stupid, xenophobic to be convinced to vote ‘yes’ for a
    change. Ample evidence abounds that they may have been right.