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

STUBBS, Professor Matthew Thomas, Private capacity

WILLIAMS, Professor John Matthew, Private capacity

[10:50]

CHAIR: Good morning, gentlemen, and thank you very much for agreeing to appear today. 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 broadcasted and recorded by Hansard. The committee will consider a request to have evidence heard in private session if you object to answering questions. If you state the grounds on which you do so, we will consider that. I now invite you to make a short opening statement and then the committee will proceed to questions.

Prof. Williams : Thank you for the invitation to appear. Undoubtedly section 44 looms large in the public discourse at the moment, especially over the last 12 months. We have had Culleton, Day, 'the Citizen 7', Nash 1 and 2 and Jacqui Lambie, and we have Senator Gallagher and Mr Gillespie still to come—and that may not be the end of the list. What is the purpose of section 44? That can be gleaned from what the framers' discussions were about in the constitutional debate, from the text of the Constitution itself and from High Court decisions and various reports of parliament—and you would be aware that there have been numerous reports into this section. In essence, it is really about trying to deal with a conflict of interest; divided loyalty; inappropriate reliance on the executive; the influence of the executive, or creditors; and some question of moral probity, or probity itself, and moral soundness.

With all these conflicts, there is the nature of a real conflict and a perceived one—and I think the perception is part of what we are trying to deal with here. So the question is: does the current operation of section 44 achieve those purposes which the framers and others have put in place? In light of historical circumstances, the UK is no longer home as it was for many of the framers. The Citizenship Act of 1948, the Sue v Hill case describing the UK as a foreign power, and the waves of postwar migration have changed that historical narrative. There is also the logistical difficulties of overreliance on the law of a foreign country—which you may not be aware of at the time of nomination—which attends with a more diverse population.

There is a certain lack of clarity about what the operation of section 44 means. It is fair to say that we are getting a raft of clarification at the moment. But if you think about Re Webster—that was in 1975—that stood on foot until we recently got some clarification in Re Day. So there are still a number of things that are unclear. There is certainly a lack of legislative capacity, I'm afraid to say, in terms of what can be done. The irony, though, is that in other areas legislative capacity—qualification of electors rather than disqualification of members of parliament—is an issue. Sections 8 and 30 helped us change the voting age in '73, but whether or not we can do anything else with the disqualification point I'm sure is one we'll come to.

My feeling is that section 44 may be overly inclusive on a number of fronts and probably does need greater refinement. While dual citizenship does appear now to loom large, it didn't in the past. But I should think—and this may be a point which we can talk about—it is but one barrier to entry to someone running for parliament. There are many others: the deposit and the requirement to resign from your job, if you're a public servant, and there are others.

In terms of greater solutions—legislative solutions—I think we may be able to provide more information, as you probably heard. The onus, unfortunately, still remains on the individual to clarify their citizenship. We possibly might want to talk about section 255 of the Electoral Act dealing with the 40 days for the return of the Court of Disputed Returns, the reference question from parliament and the common informer. As you know, many of these are going to come out in Gillespie. We could talk about whether or not to get rid of 44, but part of the problem comes from the High Court's continuing belief—and this is not an unreasonable belief—that everything has to be settled at the point of nomination. This has been, partly, the problematic thing. If it was at the return of the writs, you would have time for people who are going to be elected to resign from their job; those who are likely to be elected should be able to conclude their citizenship and bankrupts could pay off their debts. These are other things we could talk about, but that would be my starting proposition.

Prof. Stubbs : I also thank the committee for the opportunity to appear. In response to the questions about what can be done by the parliament to fix the problem, the answer is, as Professor Williams has suggested, 'Not an awful lot,' I regret to say. The approach taken by Dr Webster and me in the written submission is really that it's worth thinking about why section 44 is there and whether it's the best solution to the problem. Our submission is that it is there to address important questions about ensuring the loyalty of members of parliament but that it's now the wrong solution. If it ever was the right solution, it's no longer the case that the best way of dealing with this is constitutional ineligibility.

In our submission, the fundamental question of whether or not someone should be entitled to be a member of the body politic and contribute to society is answered by parliament in the way it defines the right to vote. Our submission is that there should be no difference in principle between the qualifications to vote and the qualifications to be elected. If you're entitled to have a vote as a member of the Australian community, you should be entitled to represent the community and parliament. There are probably one or two minor qualifications to that in our submission that would require some legislation. For example, I think that the existing disqualification for people who are serving a sentence of imprisonment or are liable to be sentence would need to be dealt with on the obvious ground that there's no point in having someone elected who is subject to being sentenced and will then fall foul of the two-month requirement and become ineligible anyway. There's no point waiting for that to happen. No-one wants to wait for a by-election or a special count, so it's better to do without. There may be other matters that come in there, but our primary submission is that, if you can vote, you can become a member of parliament, subject to those exceptions.

The only thing I would say is that what we propose, if section 44 is repealed, is that there be a disclosure regime. Our fundamental view on this is that it should be up to the Australian people. If they're concerned that someone may have divided loyalties then the appropriate process for them is to not vote for that person. If you put this back to the people but ensure that the people have the information that's required, by having a regime of disclosure, then that's an ideal solution in most cases. It is a democratic solution because it gives people a chance. Sometimes we might be satisfied with the result and sometimes we might not be satisfied with the result, but ultimately the people have then had the opportunity to make a choice and decide whether or not they want to vote for a person, knowing that they are a dual citizen or whatever. That would be our primary submission. I'm happy to explore the detail in comments.

Mr GILES: Thank you, Professor Williams and Professor Stubbs, for a really interesting submission and for your submissions today. I just want to tease out a couple of matters. I'm struck by the fact that your starting point is different from that of many others who have made similarly substantive submissions—and I hope the Chief Justice of the High Court has sent their regards! I think the point you make about the functioning of the judiciary, which has now assumed a much greater role in the operation of our representative democracy, is something that I hadn't given sufficient thought to but seems to be a big feature of the wider question of trust and confidence in our political system. Other than highlighting this as a first principle from which you proceed, I'm wondering if either of you have any further comments on that matter.

Prof. Williams : I'll start and my colleague will probably jump in. These provisions, of course, were always about a divided jurisdiction. The parliament had some of it and then they could hand it to the courts. There was always a perception that it could move out of the jurisdiction of the parliament, and parliament has made that choice. In cases like Gillespie, we're not sure how much it actually has handed over that jurisdiction; that's a point we're yet to find out. My belief is probably that the tone of what is parliamentary standing—and this casts no disrespect on the group in front of me—means it is very hard now for parliament to be judging its own. I think this is a difficult situation you all find yourselves in. One of your colleagues has already asked: what would a referendum 'no' case look like? Well, I think it's probably been well summarised that it looks self-serving. So I think there is probably a degree to which the move to the Court of Disputed Returns in some form is inevitable. If you're going to keep section 44 in its terms, or similar terms, even a legislative focus would have to have some court of disputed returns—which we're quite happy to do now for the first 40 days after an election, of course.

Prof. Stubbs : I think that's absolutely right. The only thing I'd add is that there's a distinction you can draw between what you might call 'indoor management'—that is, parliament regulating the conduct of members as members—and the question of regulating whether or not someone is eligible to become a member, which in effect draws on matters extraneous to the service. That's one reason on which you would argue that the Court of Disputed Returns retains an important role. I know there have been submissions suggesting that the powers of the Court of Disputed Returns might be wound back. I think that would be a mistake. The independent umpire in this process is a valuable one, and I don't think that it would in fact serve the interests of the parliament or the people for parliament to be required to sit and determine these matters itself.

Mr GILES: I agree with that. Just one clarification, if I may, Professor Stubbs: when you talk about the powers of the High Court sitting as the Court of Disputed Returns, are you also referring to the means by which that jurisdiction can be invoked? I'm thinking of what you might think about a common informer jurisdiction. I know we may get an answer to that!

Prof. Stubbs : Yes. Whether that comes after the writs, whether it comes through a common informer or whether it comes by way of reference, I still think that any of those means—and the parliament has shown itself quite willing to make references in these matters, although not willingly in every case—are adequate ways of getting there, and I wouldn't be advocating for cutting any of those off.

Prof. Williams : This House in fact stopped, in Parker 1939, a case from the Supreme Court here, which is the leading jurisdiction in this area. It deals with a similar provision dealing with the pecuniary interest question in our constitution here in South Australia. Of course, the Supreme Court here—and it's been adopted—has said that the Court of Disputed Returns can deal with the matter once it's released from the House. Of course, that's the worst possible situation: that we have a jurisdiction that can deal with it but it won't be referred. The parliamentarian sits, to all ostensible purposes, as disqualified but nobody can test the matter, and that looks like a very difficult situation where the court can deal with it but the parliament won't let it. I think that has to be clarified.

Mr GILES: I might take that as a brief comment in response to that. I think that in recommendations we may make about the future of section 44 and related matters, we do have to very clearly articulate a sense of the division between those matters upon which the parliament should be regulating our own conduct and what jurisdiction we think is appropriate for the court.

One other matter: we in Sydney had a bit of discussion with experts about the point of operation of any disqualification. I was interested that you raised that, because in a previous life I was involved in litigation under the former Victorian provisions. One thing that struck me through our exchange here was that, in that case, which was about the election of a woman to the Victorian parliament, there was a quite complicated factual dispute as to the point at which her election has crystallised. I wondered if that was a matter that you had given thought to if we were to go down the point of election rather than the point of nomination as the point of any disqualification.

Prof. Williams : With the Holly Hughes one, of course, we know that the point of election now appears to be in perpetuity—at least for the six years of the term that was possible. My own feeling was that for all good reasons the court has said nomination, and that gives clarity to the citizenry. They know that, if you have nominated, presumably you've checked out your own citizenship and you don't have to find out afterwards. My only response to that is that we already allow 40 days of uncertainty, so to speak, because you can go to the Court of Disputed Returns after the election.

Prof. Stubbs : I think I agree with that. I don't really have anything to add. The difficulty is obvious with the way in which the court has interpreted it now: if it starts from nomination and runs until, effectively, whenever a casual vacancy might be filled, it's an extraordinary period, and it's hard not to have sympathy for Holly Hughes's situation in that context. Sadly, I don't think there's much the parliament can do about it. It's the court's interpretation of the Constitution, and to an extent we're going to be stuck with that.

Mr GILES: I'm presupposing that we would be minded to replace the words 'incapable of being chosen'. To put it more bluntly: if we were minded to include constitutional disqualification, should that attach to the point of being declared elected, or is there some temporal point other than that of nomination? Is it assuming a seat in the parliament?

Prof. Williams : I think probably the return of the writs is a clear point.

Prof. Stubbs : I may supplement that by saying the return of the writs, absolutely. In our submission, where we spoke about the appropriateness of having a disclosure regime and so on, that should come in at the point of nomination, because that way you can then ensure that people can actually have that information when they're making their choice.

CHAIR: That's a nice segue into a few more issues I wanted to explore with you. You may have heard my questions of the last witness about section 34 versus 44. What I'm now starting to explore a bit further relates to your point about whether politicians should be sitting in judgement in terms of who gets referred, how it's dealt with and who's ultimately accountable in our democracy. Clearly the Australian people are, because they're the only ones who can change the Constitution, and I think sometimes we lose sight of that a little bit. Could this be a trigger to empower and engage more Australians with their constitutional responsibilities in our democracy and get rid of section 44 altogether? Under section 34 we've got very simple requirements: Australian citizen, eligible to vote and over 18. To me that sits in line with—you're looking puzzled.

Prof. Stubbs : Sorry; I couldn't remember if it was 18 or 21.

CHAIR: In the Constitution it says 21 under subject of Queen Victoria and men only, but that section 34 has 'until the parliament otherwise provides'. Parliament over time has made it now Australian citizenship, eligible to vote and 18. If we left section 34 to make it as wide as possible—and, as you suggested, if you're eligible to vote, why shouldn't you also be eligible to put your hand up as a candidate—do you think there are some good arguments there to be had publicly that any other reasons for disqualification should be a matter for the voters at election time to make an assessment of who they think should be eligible?

Prof. Williams : You're drawing a distinction between qualifications and disqualifications. That's really what the point is. Should we have no disqualifying factors or criteria?

CHAIR: We already have application, because to be eligible to vote there are actually some disqualifications embedded in that. If you got rid of the constitutional disqualifications, could you just wrap them up in that section and leave the rest to the Australian people?

Prof. Williams : I think there's merit in that argument. One of the examples given by the framers of the Constitution during the debate was the trade minister. I think there's also a slight difference between 'part of government' and 'part of parliament'—parliamentarians as against government. Whether or not this is still valid, the argument was that, if you held a citizenship of another country and you were made the trade minister and were negotiating a trade agreement between Australia and your other country, does this give rise to a perception that the heart of the trade minister wasn't in it? That's a perception question. I don't have a particular answer. That was the argument that was put forward. If that still stands true then there's an argument about some form of disqualification.

CHAIR: Disqualification or, like you do in other things, making transparent a potential conflict of interest?

Prof. Williams : But the voter doesn't get to choose who's going to be in the government. I think that's the point that was being put forward. The assumption is that everyone at this table will be in the government one day, but the citizen wouldn't know that. That was the argument.

CHAIR: Okay.

Prof. Stubbs : I think one of the interesting things when we think about this is whether there is anything that doesn't currently exist in section 34 and the legislation that was passed to change that that we might want to put in. I should say that all of my submissions assume that, really, section 44 has to be considered as a whole rather than as individual sections, although I'm aware of the committee's terms of reference in that respect. We had thought about this question, and really the only thing that we could come up with is that there may be one or two things that should actually be a legislated barrier. One of those would be the equivalent of the subject-to-be-sentenced provision simply because, as I mentioned before, you wouldn't want to have someone elected who would then fall foul of the section that gives you two months or you're out. So that would be an appropriate legislative barrier. Beyond that, in our submission really the question is how you can inform the people about the things that are relevant to them.

CHAIR: Under section 34, which says until parliament otherwise decides, it already does have some implied disqualifications. The second subsection also does talk about disqualification. If we've got that section that we can then use to disqualify either by implication or by being very specific—implicit and explicit—would that be enough?

Prof. Williams : It depends. You're putting it all back on the Electoral Act then. For instance, if there were a decision made to lower the voting age to 16 or 15, would that mean that that person would be able to run for parliament? That may be a good or bad thing. What about residency? We require people to be a resident of an area before they can vote in it. Is being able to vote in an electorate different from knowing the whole place? We want as many people to vote as possible. I don't have an answer, but these would be things you would probably—I think a direct mirror may not be a good assumption.

CHAIR: Let's unpack that a bit further. The parliament made a decision to reduce the eligibility age for voting and to stand as a candidate to 18 because that met contemporary community standards. If they did reduce it to 17, if you're eligible to vote, I guess the question for people is, 'Why shouldn't you be?' But ultimately it's up to the electorate. If they look at a 17- or 18-year-old and think, 'My god; that person is eligible and I'll vote for them,' that's their call, because they will know how old that person is.

Prof. Williams : I don't disagree with you but I do think it would be of value for the parliament to have a capacity to go beyond the Electoral Act. I mean you don't want someone fighting a bankruptcy through their term of parliament—because they may have creditors coming through them. As Matthew said, you can't have someone who could be likely not to be able to be in parliament because over their heads is a—

CHAIR: But section 34 doesn't specify the Electoral Act. So remedies could be taken under that provision for any other act.

Prof. Williams : I think there is room to think about the qualification, which may not necessarily be the same as the qualification of an elector.

Mr BUCHHOLZ: Your submission today speaks to the section 44 dual citizenship issue. The original authors' intent, I would suggest, was to prevent undue foreign influence and thus create undivided loyalty—and you gave the example of the trade minister. I want to take you a couple of degrees away from your actual submission—and I have not asked this question of any other witness before. Do you believe the divided loyalty part of the original authors' intent is challenged when undue foreign influence now comes in the form of foreign donations? You have not prepared your submission around it but it is another issue we are dealing with. Can you see the parallels there?

Prof. Williams : We can see why the disclosure regime is so important in that area. If citizens are quite happy to vote for somebody who is a wholly owned subsidiary of another country then, in one sense, so be it—that would be the argument. I don't think it's a perfect analogy to talk about the framers, because the vast majority of them didn't think of themselves as anything but a subject of the empire. I don't think they perceived of themselves as anything but that. I think it is the emergence of a distinct Australian citizenship that has been the driving force here. In 1897, when they met in this building, very few of them described Australia as home. The Australian Natives Association was only open to the very few of the framers who were born here. So you can't necessarily grab what they were talking about in particular. In general, I think they felt that you could not establish a conflict—and this was one way. Think of section 116, which talks about religion. The point was: let's not have it up for debate; let's just take it out of the realm and say you cannot pass a law about religious belief. That takes it off the table. That was the argument. It is the same here. We can clear the parliament up by just saying these are hurdles we won't allow people to play with. They were really trying to solve conflicts of interest. If we want to reduce that, I think we have to have a higher disclosure regime. People would have to say that we can't have an influence that is unknown to the electorate and to the population. I can't really answer your question more than by saying that the obvious thing we would do is either prevent it or disclose it, or both.

Prof. Stubbs : I think there is perhaps some irony in the fact that we are talking about the dual citizenship issue as if it were the most important avenue of foreign influence. As you rightly point out, it is probably not anywhere in the top 10 list of the most important avenues of foreign influence.

CHAIR: There are the Mueller indictments as well.

Prof. Stubbs : That's right. There are bills afoot at the moment to deal with foreign influence in a variety of ways and to change some of the offences relating to foreign influence. As you say, you only have to think about the Mueller indictments to realise that foreigners can influence elections and political outcomes in this country through all sorts of avenues, including social media, compliant nationals and other things. That's perhaps another reason that we really need to think about the work that is being done by section 44(1). The great foreign threats to Australian democracy now don't come from someone whose grandparent might have had a New Zealand citizenship somewhere along the line. It seems to me that that's the wrong area to be focusing on.

Mr BUCHHOLZ: I agree, and that's why I thought I would widen your ability to offer commentary on Hansard.

Senator RHIANNON: I think you were here when the previous professor gave evidence. He gave two options. The first referred to knocking out section 44 or amending it and leaving it to parliament. What are your reflections on that?

Prof. Williams : I can see the argument for knocking it out. I do think there probably would have to be some disqualifications, and they could be by legislation created by the parliament from time to time. The point I made about barriers to entry is that it's a barrier. I'm not sure that there is evidence—logically you'd think it is a problem that someone has to give up their citizenship to choose, but I've never seen it as being a problem. We know that parliament is oversubscribed. There are more people wanting to get in than there are seats, and people seem to be quite willing to give up their citizenship to do so. Like I said, I think the deposit is probably a bigger one.

Senator RHIANNON: Do you base that on an assumption or has there been quantitative work done on that?

Prof. Williams : I've never seen any quantitative work. I've read biographies of parliamentarians who have said one of the hardest things they ever did was to give up their Irish citizenship, and I think some of them tried to immediately reinstate it after they left the parliament. There were some from Western Australia and other places as well. I think it is an emotional thing to do. That's a personal story. The question we're talking about here is the integrity of the parliament. I think we have to divorce the personal, which I think is fundamental to the way we see ourselves, because this is an integrity regime were trying to put in place here. Whether that's done through legislation or constitutionalised is the question. My own feeling is we probably just need more time for people to get their affairs in order. That nomination is a pretty hard day, especially when you know that you may not be elected.

Mr BUCHHOLZ: We established with the Electoral Commission that you could comply with every piece of the nomination form, and fill it out correctly, and still be in breach.

Prof. Williams : Yes.

Prof. Stubbs : This is one of those questions that is unknowable. Because of the extent to which foreign citizenship depends on foreign law, in a sense it is unknowable. So you can be as well organised as you like, and you can have as much warning as you like—for example, on nomination forms—but it's likely that people are still going to fall foul of section 44(i). I think that goes to the question: is the constitutional solution the right one? I think the answer to that is no.

CHAIR: I'd like to pursue with you something that has been presented to this committee, and we're deliberating on it internally with some degree of alertness. If we haven't gone from alert to alarmed, I certainly have in my case. The issue is that the High Court has now been very clear that it is at the point of nomination, so what are the flow-on impacts from that on the next election? While we're focused on MPs, in terms of 44(i), and looking back, what are the implications for any of the other 1,600 candidates who were also on ballot papers at the last election and whose preferences were distributed? My concern is about candidates in the Senate who had been voted for above the line and those in the House of Representatives who went to preferences. If any of the other candidates who they received preferences from were challenged and found to have not been eligible to be on the ballot paper, then that could trigger, in the House of Representatives, a by-election or, in the Senate, something extremely messy.

That's as we are now. But for the next election, if you have people who are public servants who haven't quit their job or people who have unresolved or unknown citizenship requirements at the time of nomination, they could, whether by fair means or foul, be challenged before the writs are issued, or after. What are the implications of that? In terms of interference, if I wanted to cause some degree of pain in our democracy, I could either look for people who are not likely to be eligible or actually seek people to run at the next election knowing that if they were challenged they would be found not to be eligible at the time of nomination. The consequences of that, I think, are concerning and potentially very disruptive. So, simple question?

Prof. Williams : Yes, simple question!

CHAIR: Over to you, gentlemen.

Prof. Williams : I think it's going to turn on section 355 of the Electoral Act and the ability to bring matter after the issue of the writs. With the previous election, that date's gone, so there would be no capacity to challenge that.

Senator REYNOLDS: I understand that under the common informers act you can still bring it forward at any time after that.

Prof. Williams : But that's the thing about the common informers act. The common informers act requires currently—I think this is the interpretation of the court—that the parliament— Stepping back, it's probably the case, so the argument goes, that when parliament passed the common informers act it didn't achieve what it had hoped to achieve. It thought it was opening up, I think, the capacity for someone to bring an action during the life of somebody's tenure. What we've got is the situation where, unless parliament refers, the common informer doesn't proceed. That's what the Gillespie point's all about, as I understand it. That threshold question—can you even bring this matter?—faded away in Culleton because of other disqualifications, so we never got it to there. So I think we're going to have to wait to find out what the answer to that question is.

Just for the issue of certainty, you'd hope that we'd have to have a point where we say the parliament is elected, subject to other revelations—that's the problem, isn't it?

CHAIR: It's a hope, not a certainty.

Prof. Williams : Yes, that's true, but going forward we'd say that those who are elected would be challenged. With someone who is not elected—so in your countback example—my view would be that, because the 40 days have run, they would stand as someone through which a distribution of the votes could happen, notwithstanding that they would not be elected themselves; if that makes sense.

CHAIR: It does if you're dealing with fully rational people who would let that go. But if there were a challenge or if, like now, the election were close and, before or after the 40 days, you brought an action in, say, the seat of the Prime Minister-elect and a number of other key seats, I imagine it would be quite disruptive, because they might not be able to form government or appoint an executive.

Prof. Stubbs : I'm not entirely prepared in terms of answering the minutiae of this question but I'm going to have a go. It's not necessarily the moment of greatest comfort when you fall back on jurisdictional restrictions, but I'm going to fall back on a couple here. The first is to say that those barriers to getting in—the 40 days, the reference and so on—probably help here. The second is to say that I'm not sure that an argument about someone through whom preferences flowed but who wasn't elected would actually be an argument that came within the jurisdiction on this point. I'm not sure that you can go and attack everyone through whom preferences have flowed. I think you can attack the election of someone who was declared elected and purports to be a member or a senator; I don't think that you can attack anyone through whom preferences flowed. So maybe the scope of this problem is not as wide as might be feared. That's by way of saying it doesn't really address the issue; it just stops people from raising it and solving it.

Thinking about the key electorate issue, unless you can show that there's actually a problem with the person elected, I don't think there's a means of challenging every person through whom preferences flow; at least, that would be my understanding. Theoretically, it might be possible, but I don't think it comes within the jurisdiction of, for example, the Court of Disputed Returns.

CHAIR: You don’t have to do this, but if it is something of academic interest and you'd like to express further opinion on it I'm sure the committee would be very happy to receive that. I also want to explore a little further another issue that's critically important to our report, and you've raised it. It's the issue of allegiance versus citizenship. I found in the public arguments, even in my own mind coming into this, that they were issues that were conflated, to a large degree. To find a resolution to this, we're going to have in the report and in any public discourse about this a clearer separation of allegiance and citizenship. I'm wondering if you have any further reflections on that aspect.

Prof. Williams : In some ways, it's a question of form over substance, isn't it? Holding a citizenship of another country doesn't say anything about your allegiance to it—

CHAIR: Particularly if you're not aware of it!

Prof. Williams : particularly if you're not aware of it. We do require people to, once they take a citizenship oath, to relinquish—or, at least, publicly make a statement—their allegiance to another place. We can't hold them to that but, at least, it's one of the things we attempt to do. You can make the distinction but I'm not sure it's a distinction that gets you to where you want to be—that is, that someone's sole and whole affection is for the country of which they're going to be a member of the parliament.

Prof. Stubbs : I suppose the significance of allegiance is just that it'll come up much less frequently. Thinking of the current ones, the only one offhand I can think of that may have raised an allegiance question is Canavan. But that didn't result in ineligibility, in any event. It's much less likely for someone to formally declare an allegiance, which is the first part of section 44(i), than it is to have a citizenship floating in the background. For that reason, perhaps, formally declaring an allegiance, applying for a new citizenship, might be the appropriate disqualification. That assumes it is thought that dual citizenship is a problem.

The other argument, and I know Professor Reilly's just been here, is to say that dual citizenship should be celebrated rather than denigrated, although—

CHAIR: That's a very good point. Through our own research and the overwhelming weight of submissions and evidence we've had in every other aspect of Australian life, now, multiple citizenships are legal and quite often celebrated, in terms of our diversity and embracing other cultures, including people's own backgrounds. It's going to be an interesting issue for us to try to traverse.

Prof. Stubbs : I might comment on that point. I know that the chair is a former reservist, and I am a current one. It's my understanding that people wishing to serve in the forces are relatively frequently required to give up dual citizenship, so it may not be that parliamentarians are the only ones who are in this game. I know people who had to give up their dual citizenships, including citizenships at birth, in order to join. So there are still some areas of public life where dual citizenship is seen as a problem. It's not necessarily obvious to me that dual citizenship is always an innocent thing. I think it might be something that is still relevant for the public to know, in terms of a disclosure regime, but I don't think that constitutional disqualification is the way to go.

Mr MORTON: On the issue of having to change the Constitution, what entertains my mind is we need to put up a proposal that will pass. That's really important. I asked the Parliamentary Library to do some research for me, in relation to the minimum percentage of Australians who can vote to defeat a referendum. It was 19.8 per cent, which is very low. If you have 19.8 per cent of the Australian people vote against a referendum proposal and it's lost—that's obviously taking the smaller states, and the no votes required in the smaller states, as a percentage of the overall population. I don't think it'll be 19.8 but that's the minimum you would require.

We have to also think about what's achievable in relation to the referendum. I think the evidence is very clear in relation to the chilling effect, I suppose, that there is with people having to remove their dual citizenships at the point of nomination, at the point of election, so I want to come back to that issue. In your view, could we achieve a change in the Constitution through a referendum if we actually, through that process, maintained the requirement that parliamentarians need to be citizens only of Australia, but we remove, through the Constitution, the issue of whether or not that has to occur at nomination? You may not even have to have that occur at declaration of the poll; you may not even have to have that back at the return of the writ. It could be a constitutional provision around whether or not you can vote on proceedings in parliament, or you might have three months from the return of the writ or something to dispose? Have you thought about those issues and considered them?

Prof. Williams : I'm a constitutional reform optimist: I think we should always try, even in the face of overwhelming evidence that that we're going to fail. Look, this is a very hard one to sell. If I was thinking about all the things I'd change in the Constitution, unfortunately this is not at the top. It's going to be subject to the argument: 'Get your own house in order. Why are we going through this?' The no case can write itself.

It's also a very overly technical question to try to get up. With that question you've put—nomination, vote, three months—my own feeling is that I have a preference for nomination, only because it's closer to the action. But even that, there's not a great grab for this, to be honest, because it's easy to become a parliamentarian—that's the point here—and that's not a big sell. If you wound it up in some other issues that we do need to face, it does run the risk of people asking: 'Why are we preferencing this one when there's questions of the republic and reconciliation? Where does this fit into that debate?' It's probably not high.

CHAIR: Just on that point: on other issues there isn't bipartisan Senate community support, so at least if this committee can put a cogent bipartisan argument that it's in the interest of the Australian voters—we're ever the optimists as well—then at least that meets a threshold that the other discussions on constitutional reform may not have passed yet.

Prof. Williams : The history of the no cases have always been intended to be someone who's trying to make a political name for themselves for the next election. That's why you coat-tail on a no case, to give yourself a platform.

Prof. Stubbs : This comes back to what question is most likely to be saleable, in a sense. While I can see the virtue of a minimalist approach, such as saying, 'Let's just effectively change the Constitution to get rid of the High Court's interpretation of the long period,' and saying, 'Let's put it here,' the chance of success in putting up a fairly technical amendment is probably less than in putting up an amendment that actually does what it says.

On that point, I'm aware of submissions to the committee that the solution to this problem is to insert into section 44 'until the parliament otherwise provides'. My view is if you're changing the Constitution specifically to change something, why would you put 'until the parliament otherwise provides' when the whole purpose of making the change is so the parliament will? If you're going to have a discussion with the Australian people, get out there and say to the Australian people: 'This isn't the way to do it. We should do it in legislation, and that's why we're making the change.' I just can't get myself behind a proposal that tries to do this through the back door. I don't think it changes the public discussion, and I don't think the public are going to be any happier. I think this obscures the issues, frankly.

Mr MORTON: My issue is that I have the benefit of sitting here and hearing all of the evidence, and the weight of evidence is that we do have to change the Constitution. The evidence also is that dual citizenship is not as much of a problem as I first thought when I started this process, but am I totally convinced? No, I'm not; not yet. If I'm not totally convinced after hearing all of this evidence, I worry that non-major political party elements of our political culture will run a campaign where you should only have loyalty to Australia if you intend to vote or sit in the House of Representatives or the Senate. I think that there is a very significant issue where you require that to be in place at nomination, because it's a barrier to people seeking parliamentary office and it can have effects in relation to the results and countbacks, as the chair's rightly pointed out through this process.

I've asked a few of the witnesses to take on notice some further thinking about a second option along those lines. You're right: it's a little bit more technical, but the basis is the same and this does not change the fact that Australian parliamentarians should have loyalty or allegiance only to one country. I can see people arguing against complete repeal. I find the third option a little less likely to be argued against. I could be wrong.

Prof. Williams : One of the other difficulties—and I won't keep you—is that, whilst these are quite technical decisions by the High Court and the text drives them in those directions, you seem to be upturning a decision of an institution which is held in very high regard in Australia and that's a difficult case to make as well. It can be made, but it's just one of those other factors.

CHAIR: Thank you. Our time has concluded here today. Thank you very much, both of you, for the written submission and also for your willingness to engage in some discussion on some of the issues that are now top of mind for the committee. We're very grateful, so thank you very much.