Mr ORGAN (11:41 AM) —The Commonwealth Electoral Amendment (Members of Local Government Bodies) Bill 2002 seeks to ensure that eligible members of a local government body do not suffer any penalty arising from their decision to stand as candidates for election to either the House of Representatives or to the Senate—that is, that local councillors do not have to resign their positions in order to be candidates for federal office. The amendment inserts new subsections in section 327 of the Commonwealth Electoral Act to provide that a state or territory law has no effect on the extent to which that law discriminates against a member of a local government body who has been, is or is to be nominated or declared as a candidate in an election for the House of Representatives or the Senate.

I am sure that honourable members are familiar with the background to this move. The Queensland Local Government and Other Legislation Amendment Act 2001 was subsequently found to be invalid by the Queensland Supreme Court, primarily on the grounds that it was inconsistent with sections 163, 164 and 327(1) of the Commonwealth Electoral Act. The aforementioned amendment act sought to declare vacant the position of any local councillor who was a candidate for state or federal elections. I do not propose to cover that ground in any great detail except to note that it was controversial at the time and a number of legal commentators were opposed to the decision of the Queensland Supreme Court.

Many cogent arguments exist on both sides. Those opposed include the prominent lawyer and academic, Anne Twomey, who commented in the periodical Constitutional Law and Policy Review:

Another argument put is that, whilst sitting members of state and territory parliaments are prevented from becoming members of the federal parliament, why should similar rules not apply to the elected members of local government? With such controversy surrounding the Queensland Supreme Court decision, the bill before us seeks to apply that decision across Australia and instil some degree of certainty to the issue.

At first sight the bill appears worthy enough but, on closer reading and investigation into this whole issue of the eligibility of Australians to stand for the federal parliament, it is quite clear that this bill really does not go to the nub of the issue. Indeed, it misses the mark so widely that I wonder why it was introduced at all. The bigger issue concerns section 44 of the Constitution. This bill does not provide certainty or clarity to the eligibility of local councillors who seek to run for federal parliament. As the explanatory memorandum to the bill tells us:

I note that the Australian Electoral Commission warns prospective election candidates, and states:

That disqualification, contained in section 44, and subsection (iv) particularly, of the Constitution, is one which strikes a particular chord with me. Section 44(iv) states:

This section strikes a particular chord with me because this matter was raised during the Cunningham by-election campaign last year. As I was an employee of the University of Wollongong, questions were asked as to whether this was a so-called `office of profit' under the Crown. Section 44(iv) has rarely been tested in court, although the High Court did invalidate the election of the then member for Wills in 1992 because he was a teacher on leave without pay, and the current member for Lindsay in 1996 because she was an Air Force officer at the time she nominated.

The real point here is about what constitutes an office of profit under the Crown. This bill unfortunately does not address that issue. In my own case, I have a legal opinion which says that my situation as an employee of an Australian university is not caught up by section 44(iv). But this provision nevertheless excludes public servants and others, such as those on pensions, from running for federal office. This is a rather ludicrous and undemocratic situation in this day and age.

The issue which now faces the House in considering this bill is the unusual situation which it creates, for the bill seeks to prevent discrimination against local councillors standing for federal parliament while there remains uncertainty about whether or not they hold an office of profit under the Crown. That uncertainty is recognised by the Australian Electoral Commission, as I have outlined, and it is certainly recognised by the Liberal Party, as shown by Senator Nick Minchin's evidence to the Joint Standing Committee on Electoral Matters in 1997, when he said:

that is, for the previous federal election—

The senator's party then went about ensuring that its candidates resigned from their local government positions before renominating. I note that not all parties or individuals follow the path the Liberals took back in 1997. According to the Bills Digest and the current Parliamentary Handbook, the current member for Chifley was elected to the federal parliament in 1984 but remained an alderman on Blacktown City Council until 1987 and was deputy mayor until 1985.

So where do local government councillors stand on this matter? Whose advice should they take? Why does this ambiguity remain? It appears that the bill before us seeks to protect the candidacy of people who may well be constitutionally disqualified. The real issue here is to determine once and for all what section 44 means. That is what the government should be doing instead of this piece of patch-up legislation, no matter how well intentioned it is.

My Greens colleague in the other place, Senator Bob Brown, has been trying to get this matter settled for a number of years. He has done this via the Constitution Alteration (Right To Stand For Parliament—Qualification of Members and Candidates) Bill, which was first introduced in 1998 and was again brought before the Senate in May this year. Senator Brown has been trying for good reason. As every election approaches, 1½ million teachers, posties and other public servants in this country who might like to stand for federal parliament have to decide whether it is worth resigning their jobs in order to do so. Many decide that it is not, and as a result our parliament and our democracy is the less for it.

In addition, Australian citizens who are also citizens of another country—that is, they have dual citizenship—have to go to great lengths to repudiate that second citizenship if they want to nominate for election here. Section 44 is the problem. It stops anyone who holds a so-called `office of profit under the Crown' or who is a citizen of another country—that is, they have dual citizenship—nominating for this parliament. That dual citizen component prevents another five million or so Australians from standing for parliament. It undoubtedly limits the cultural diversity of this place.

There is also a question mark over pensioners who may arguably have an office of profit under the Crown and may therefore not be able to stand for office. That includes disability pensioners, old age pensioners and, indeed, unemployment benefit recipients and recipients of other benefits. Should they be forced to give up their pensions and unemployment benefits for the weeks and months of an election campaign? Of course not. Should they be disqualified from standing? Of course not.

There are between five and seven million Australians who, under the current constitutional provision, cannot stand for their own parliament, because the Constitution was written in the 1890s. We are now in the first decade of the 21st century. Things have moved on a great deal since the 1890s. Our nation has changed—and is changing—and our constitution needs to change with it. Just as we need to move towards becoming a republic, so we need to deal with the `office of profit' issue. We need leadership from this government, and referendums must be put to the people on these matters.

It is clear that section 44 deprives the federal parliament of a huge pool of talented potential politicians. At every recent election it has caused trouble and expense as someone unwittingly falls foul of the Constitution. Everyone agrees that section 44 should be changed. All parties supported a Greens motion in the Senate to that effect in October 1996 and called on the then government to bring forward a proposal for constitutional amendment. The Joint Standing Committee on Electoral Matters, reporting on the 1996 election, recommended:

which would have taken place in 1998—

so this would not catch up people with nominations—

That was recommendation 39, which was very sensible and reasonable. Then the House of Representatives Standing Committee on Legal and Constitutional Affairs examined in detail sections 44(i) and 44(iv) of the Constitution and recommended that a referendum be held to amend them. The government's response to those recommendations has been supportive. It states:

It went on to say:

That quotation is from the government's response to the report of the House of Representatives Standing Committee on Legal and Constitutional Affairs which was titled Aspects of section 44 of the Constitution. However, no bill for a referendum has been forthcoming. Instead, we now have the Commonwealth Electoral Amendment (Members of Local Government Bodies) Bill 2002, which fiddles around the edges of the central problem. It deals only with local government councillors, not with the millions perhaps covered by the office-of-profit sword of Damocles.

In summary, I feel it is an extraordinarily important component of an egalitarian country that no-one should be deprived of the ability to stand for his or her parliament and to represent his or her people. We are proud of our democracy and must ensure that it is truly democratic. This bill represents a missed opportunity. It does not solve the section 44 problem, and the advice from the Australian Electoral Commission stands: prospective candidates for federal parliament who hold a position as a local government councillor may not be able to take up a seat in this place. The government must address this issue and not leave it hanging out there unresolved.