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Joint Standing Committee on Electoral Matters
19/02/2018
Matters relating to section 44 of the Constitution

REILLY, Professor Alex, Director, Public Law and Policy Research Unit, University of Adelaide

Committee met at 10:24

CHAIR ( Senator Reynolds ): I now declare open this public hearing for the inquiry into matters relating to section 44 of the Constitution. The committee will now hear from Professor Reilly. Although the committee does not require you to provide evidence under oath, I wish to advise that this is a formal proceeding of the parliament, and giving false or misleading evidence is a serious matter and may be regarded as a contempt of the parliament. These proceedings are being broadcast and also recorded by Hansard. These are public proceedings, although the committee will consider a request to have evidence heard in private session. If you object to answering a question, please state the grounds on which you object, and we will, of course, consider that.

I now invite you to make an opening statement, and we will then open it to questions from committee members. Welcome.

Prof. Reilly : Thank you for the opportunity to address the committee, and thank you also for travelling to Adelaide. We appreciate the effort involved.

Mr BUCHHOLZ: You turned the bridge on for us!

Prof. Reilly : We did! If you could stay, you would have a good time. I'm making this submission as the Director of the Public Law and Policy Research Unit. The submission is my own but has been circulated among members of the research unit and endorsed by those named in the written submission. My remarks today will address terms of reference C, D and E. However, I am happy to speak to the other terms as well if the committee would like.

Section 44(i) should be amended, in our view, because it is unnecessary, unworkable and out of step with the criteria for membership in Australian society as it has evolved since Federation. As a general rule, all members of the Australian community who are eligible to vote should be encouraged to seek election to the parliament, and as few barriers as possible should be put in their way. We're a multicultural nation that actively sought out people with other citizenships to join the community after the Second World War, implemented a non-discriminatory immigration policy from 1975 and, since 2002, has allowed new Australian citizens to retain their other citizenships. By its very nature, foreign citizenship poses no risk to the parliament and should not render a person ineligible to run for parliament. On the contrary, the relationship dual citizens have with other nations may be of benefit to the parliament and its deliberations. If foreign citizenship compromises a person's ability to perform their duties as a parliamentarian in a practical way, such as compulsory military service obligations overseas, this can be dealt with through the rules governing the operation of parliament and doesn't need to be in the Constitution.

It is important not to confuse concerns of foreign influence with foreign citizenship. It is as likely, and perhaps more likely, that a person will be influenced by a nation with which they have no formal ties. Influence is wielded in sophisticated ways. Our system of government has a wide range of protections that can guard against foreign influence and interference. The Constitution provides robust protection by establishing responsible government, periodic elections and the separation of powers. In addition, the parliament has developed rules to maintain its integrity, and Australia has established security agencies to protect against foreign influence, such as the Australian Security Intelligence Organisation and the Australian Secret Intelligence Service.

I'll move now to why section 44(i) is unworkable. The High Court has interpreted section 44(i), in Sykes v Cleary in 1992 and Re Canavan in 2017, to mean that possession of dual citizenship itself leads to ineligibility, without knowledge of that dual citizenship. This interpretation was required by the clear wording of the section. I have no complaints about the High Court's interpretation. By not attempting to reduce the impact of section 44(i), the court has left it to the parliament to initiate change through a referendum process. This is now necessary, whereas perhaps prior to the problems in late 2017 it might not have been necessary.

Repeal is the only workable option. The alternative of requiring persons nominating for parliament to declare their citizenships leads to considerable uncertainty. Whether a person is a citizen of a foreign country is not always easy to ascertain. A person may be put on notice by the fact of their birth or ancestry, but ascertaining the citizenship implications of foreign birth or ancestry can be extremely difficult, as the circumstances of Matt Canavan and Nick Xenophon demonstrated.

If the parliament manages to develop a workable protocol for dealing with foreign citizenships, it will leave a significant proportion of the population having to divest themselves of a foreign citizenship at the point of nomination. This will be a strong disincentive to nominate for parliament at all, which has serious implications for the diversity of representation in our parliament. And then there will be those who nominate without knowing they are dual citizens, and we will have further referrals to the court. So that's why it's unworkable.

I will move now to why section 44 is out of step with the criteria for membership in Australian society. The crisis in section 44(i) has come about because law and policy on citizenship has evolved but the constitutional requirements pertaining to eligibility have not. In 1901, membership in the Australian community and eligibility for parliament worked in parallel. The overwhelming majority of the population were British subjects with sole allegiance to the Crown. There were few foreign nationals in Australia and their position in the community was perilous, being liable to be deported under the Immigration Restriction Act 1901. The expectation was that people who had allegiances outside the Crown would not be in the Australian community at all, let alone run for parliament.

Since 1901, Australian citizenship has changed considerably. Australia became increasingly independent from the UK, economically and militarily, through the first half of the 20th century. In 1948, we had a new concept of Australian citizenship which existed alongside British subjecthood as providing membership in the Australian community. After World War II, there was a rapid transformation in the constitution of the Australian nation. It's a well-known story. By 2018, over half the Australian population were either born overseas or had a parent born overseas. Many of these will retain citizenship with their countries of origin, whether or not they are aware of that fact. In 1982, amendments to the Australian Citizenship Act 1948 removed the privileges of Australian citizenship from British subjects, and in 1999, in the case of Sue v Hill, the High Court declared Britain to be a foreign country from at least 1987. As a result of these changes, in 2018 citizens of countries that were part of the British empire, including the UK, Canada and New Zealand, are now considered to be foreign citizens for the purposes of section 44(i).

In sum, the Australian community has changed in constitution dramatically, and our relationship to the rest of the world has also changed. However, the rules around eligibility to run for parliament have not been updated in parallel. Paradoxically, the creation of a separate Australian citizenship means that section 44(i) has a more exclusionary operation now than it did at Federation.

The other paragraphs in section 44 also deal with matters that, in our submission, ought not to be dealt with through constitutional provision. They are matters that the parliament can make rules in relation to. I won't say more about that unless the committee would like to press me. Any of the concerns about a person's fitness to serve in parliament expressed in those provisions are best dealt with through the electoral process and the rules of the parliament. Sensible suggestions for reform have been made in previous inquiries, which the committee will be aware of, including by the House standing committee in 1997, the Constitutional Commission in 1988, and the Senate Standing Committee on Legal and Constitutional Affairs in 1981.

Finally, I will turn to the question of what should be put to the people at a referendum, as, clearly, that's what I think is the solution. Two proposals for amendment of section 44 have been discussed in submissions. One is to completely delete the section, and the other is to add the words 'until parliament otherwise provides' at the beginning of the section. The second proposal—adding the words 'until parliament otherwise provides'—makes no substantive change to the Constitution but simply provides parliament with the power to update the constitutional requirements. Being the least dramatic change, it may have the best chance of success at a referendum. However, such an amendment leaves the impression that there is a prima facie case for excluding dual citizens from running for parliament, which is obnoxious in a multicultural nation such as Australia. Therefore, I favour complete repeal of section 44. Given that it has no sensible work to do, it should be easy to garner bipartisan support for its removal and to persuade the vast majority of the Australian people to vote in favour of its removal at a referendum.

CHAIR: Thank you very much, Professor Reilly.

Mr GILES: Thank you, Professor Reilly. It was a really interesting and helpful submission, and so was your evidence today. I'm also pleased that you ended on an optimistic note that hopefully we can do justice to. I would just like to press you a little more on your views about the extent to which we should look to mechanisms other than the Constitution to put in place bars as to candidates' eligibility to be chosen for the federal parliament. You've taken a fairly light-touch approach, which I think is consistent with many of the submissions that we've received.

Prof. Reilly : Are you asking about the existing—

Mr GILES: No, I'm asking about your thoughts on reform.

Prof. Reilly : Okay. In a general sense, I think the rules for eligibility to vote should match the rules for eligibility to run for parliament. There doesn't seem to be any sensible reason to make them different, and our current rules for eligibility to vote seem to be about right to me.

Mr GILES: Perhaps I should be more explicit. The concern that I have is really how we deal with the issues of electors actually being informed as to matters that need not go to formal eligibility but may well be relevant to their determination.

Prof. Reilly : I understand now what you're after. I certainly favour parliament setting up rules for determining issues that ought to be disclosed by candidates prior to nominating for election. What those issues are, I think, is for the parliament to determine. I don't think it's for me to say what they are. I would say, however, in the context of this inquiry that I don't think one of those things is necessarily citizenship, as I don't think citizenship has any relevance to your ability to run as a parliamentarian or any risks in relation to running as a parliamentarian. As I said in my submission, the reason I think that is that, if the concern is foreign influence and foreign allegiance—

CHAIR: You don't need to be a foreign citizen at all.

Prof. Reilly : You don't need to be a foreign citizen to be a concern to the Australian people. In fact, with someone who is a foreign citizen, we're alerted to a potential issue, and the parliament can inquire into that.

Mr GILES: Take me as persuaded by that. The last thing I'd like to explore with you is that your inclination, in terms of constitutional reform, is straight-up repeal, as opposed to effectively putting the question of eligibility into the hands of the legislature. I understand why you say that. I guess my concern is really about the politics of that—small p—in terms of the conversation that I think the Australian public would feel, appropriately, that they should be involved in. It seems to suggest a much longer journey towards reform than placing the matter of putting any bars in place in the hands of the legislature. I know that you've expressed a confidence in Australians being walked through this, but I think all committee members have had our preconceptions challenged by some of the issues at play here, and I just want to test the strength of your recommendation to go down the repeal path.

Prof. Reilly : Sure. The strength of my recommendation is, as you said, based on a confidence that it is possible to persuade people that dual citizenship is not a concern. If you have a referendum where you, say, put in the words 'until parliament otherwise provides', then the discussion is around, 'Oh, we're not really making a change, and it's fine; we're just leaving it to parliament to change it if they think it's a good idea,' whereas I actually think we need to have a stronger conversation, which is that dual citizenship is not a problem. I can't be confident about that, except to the extent that it seems to me that the case is so clear, in a multicultural Australian society, that more than half the people would accept it.

CHAIR: Just picking up on that point, I'm now looking at how to frame this argument publicly, because clearly there are so many implications now for the outcome for the next election. Anybody who ran, and whose votes were distributed as preferences, could actually disqualify an otherwise totally validly elected member of the House of Representatives or the Senate. That's a much harder argument to prosecute. It's easier to prosecute amongst some people, but it's a harder public discussion. But what I've been turning my mind to is the differences between section 34 and section 44. What I'm contemplating is that section 34 obviously has 'until parliament decides otherwise' and they have reduced it from 21 to 18. You no longer have to be a subject of Queen Victoria and you have to be eligible to vote. I just want to unpack a little further what you were just discussing. One of the recommendations was to just delete section 44 altogether and use section 34, then possibly provide more information to the Australian people and they would make a decision about who they think shouldn't be eligible and who they're not going to vote for. I think it actually makes it more democratic, in a sense, than section 44 provides for. Do you have some sort of opinion about that—for or against or anywhere in between?

Prof. Reilly : My opinion, without having explored this element closely, is that leaving it to the parliament so that it becomes more democratic is the right way to go. Having provisions in the Constitution about eligibility to run for parliament leaves it as an immovable set of rules, and this is the problem we've had. We know it's hard to change the Constitution. Even if you amend section 44 to take out dual citizenship but leave other provisions in there, they may not be appropriate in 20 or 30 years time, because things may have moved on. It's better to leave it to the parliament so that the people are constantly having a conversation around the rules for eligibility.

CHAIR: And then leave it up to people. So we would have a basic threshold of who is qualified, but then it would be up to the voters themselves to work out who should be disqualified—that is, by not voting for them.

Prof. Reilly : Yes, exactly.

Mr GILES: I have one last question. I suspect you've answered this already, but I just wanted to ask you particularly about subsection (iii) of section 44. You don't believe there is a warrant for retaining a prohibition on undischarged bankrupts?

Prof. Reilly : Again, I may have a personal view on whether bankrupts should be sitting in parliament, but I think that is something for the parliament itself to determine. I don't think you need a constitutional rule that necessarily excludes bankrupts from being eligible to run for parliament.

Mr GILES: I will just pursue that a little bit more, because that seems to be a case where the conflict of interest may be more real than in the other categories, but you don't accept that's an argument for constitutional prohibition.

Prof. Reilly : That's exactly right. I absolutely accept that there is a potential conflict of interest, and that's real and needs to be dealt with, but not in the Constitution.

Mr GILES: Thank you very much, Professor Reilly.

Mr BUCHHOLZ: The committee has pretty well followed the lines of questioning that I was going to pursue, assuming that the committee is not that disjointed from your deleting section 44 and your inclusion of 'the parliament otherwise provides'. Are you aware of how many times we have gone to a referendum and the issue at hand has come up in the negative?

Prof. Reilly : Yes, I am: eight out of 44 have succeeded, so that means that—

Mr BUCHHOLZ: So, whilst we may share your opinion, it's now about trying to overlay the politics and the marketing of this. Just on pure statistics there is an eight in 44 chance that this is going to get up.

Prof. Reilly : I wouldn't agree with that. I think you have to look at each of those questions. You've got a look at whether there was bipartisan support—and there often wasn't—for those referendum questions. So let's discard those. Let's look at the ones where there was bipartisan support, like 1967 where we amended the race power—90 per cent of the Australian people voted in favour. I think this kind of issue is about our identity as Australians, and that 1967 referendum was similar in that sense. It's something that you can garner support for. I would even make a connection to the plebiscite we had late last year. That was a really difficult question that the Australian people had to face and 62 per cent or more voted yes. You only need to get over 50 per cent. Despite having a poor record in the past, I don't think that is an indication of how this will go.

I think you can have a clear narrative on this. Often we have had referenda on which we have had four questions at the same time, and the voters have gone, 'I'm confused. I don't know if I should vote yes for that and no for that. It's too hard, so I'll vote no for everything.' I don't think we have necessarily run the referendum process particularly well in the past. Hopefully, we have learnt from that. I think we can do much better.

Mr BUCHHOLZ: Have you given any thought to what you perceive the no campaign would look like?

Prof. Reilly : I haven't given a lot of thought to that.

Mr BUCHHOLZ: 'Giving more power to politicians. They can't get the paperwork right. Why should we give them a hand up. Just get your shop in order rather than having to take this to a referendum. It's another waste of money. You guys are hopeless.' That's just some of what that could possibly look like. Have you not at all put your mind to it? I know you are enthusiastic at the other end of the spectrum, but, by jingo, at the other end you are going to get smashed.

Prof. Reilly : But that is the case in every referendum. There is always potential for a no case. I think those points you put will be persuasive for some people, but I think for the overwhelming majority of people, and I wouldn't say 50 per cent but the overwhelming majority, will see through that and recognise that this is an exclusionary provision that is not necessarily—

Mr BUCHHOLZ: Should there be equal amounts of funding available for the yes and no campaign?

Prof. Reilly : Yes. If you need to give public funding to the campaign I suppose as a matter of equality that is probably—

Mr BUCHHOLZ: But to give it the best chance—if the yes position is so overwhelming.

Prof. Reilly : Because the yes campaign is so overwhelming a lot of the campaigning in favour of it won't require public funding. There will be groups that will be out there putting the case to the Australian people.

Mr BUCHHOLZ: Thank you for your evidence today.

Senator RHIANNON: In your evidence I think you said you thought there would be a disincentive for people of dual nationality to run. Do you have any evidence? Has anybody done any surveys about that? To my mind it sounds logical, and I have heard other people say it, but I thought I would ask the question.

Prof. Reilly : I don't have evidence. It is really just based on a matter of logic. If you are faced with a situation where you are a dual citizen and for whatever reason you want to keep that dual citizenship—so you can get into Europe more easily—and then you think that if you run for parliament you have to get rid of that, you might decide not to. It is as simple as that.

Senator RHIANNON: Coming back to the issue you were just speaking about—that is, the political approach and how referenda can get across the line—I guess what you are really saying there is that when success has come it has been when the major parties are behind the yes vote. Is that a fair summary?

Prof. Reilly : That is right.

Senator RHIANNON: Even though there is a yes and no vote that are equally funded.

Prof. Reilly : Yes.

Senator RHIANNON: But if you have the major parties, the major voices behind it with clear support, it is as simple as that?

Prof. Reilly : It is. I think there will be more voices on the yes side of this than the no side, and the yes voice is so much more persuasive.

Senator RHIANNON: It is an interesting comparison that you make in 1967, too. I thought that was quite insightful in terms of how we perceive ourselves as a country in the 21st century. You then say that there are two possibilities, as you saw it: completely deleting the section or just going with 'until parliament otherwise proceeds'. Do you favour going with the deletion?

Prof. Reilly : My submission on that is not that strong. I do think that the parliament can decide what it thinks is possibly going to work and more likely to succeed, and I would favour that. The point I am really making is that if you go that way you are still leaving the prohibition against dual citizens in the words of the Constitution. If we are trying to modernise our Constitution it would be better to get rid of that. However, if as a matter of politics and as a matter of strategy it was decided it would be easier and that the chances of success were considerably better going with adding those words, I would support that.

CHAIR: Thank you very much, Professor Reilly, for your written submission, which I found incredibly helpful. It was short, sharp, succinct and on point—which is maybe not always the case from some of our academic colleagues! Your appearance here today is appreciated because it has highlighted and reinforced your submission.

Prof. Reilly : Thank you, Chair.