Some students enjoy constitutional law, most suffer it. It might be the size of the textbook or the fact that Victorian alternative legislative procedures are confusing and nonsensical. It could be that Australia has a codified constitution with enumerated powers outlining the legislative capacity of our Federal Parliament but that when it comes to considering the existence or non-existence of executive powers we have to turn to the wonderfully complex unwritten constitution of the Imperial Parliament. It’s not hard to understand why our eyes might glaze over as we trace the history of Australia’s journey from a loose group of colonies to a tightly bound federation on New Year’s Day, 1901. That’s not to mention the propensity for High Court justice’s to deliver separate and conflicting judgments that can make it nearly impossible to decipher a ratio even when on the surface of things they agree (Workchoices case, we are looking at you). Whatever way you look at it, “Consti” is the law degree’s equivalent of a grenade lobbed at your feet. Best to kick it to the curb before you lose a limb.
That said, it’s not all negative. Constitutional law represents the most acute juncture of politics and the law in the Priestley eleven. Whilst all law is influenced by politics, Constitutional law has the unique position as being the study of the laws that control politics. It’s a unique symbiosis where the law and politics endlessly feed into one another with sometimes quizzical and mildly amusing results.
One clear example of constitutional law’s feedback loop can be seen when considering the alternative legislative provisions in the Victorian Constitution which were updated in the mid 2000’s by then Attorney General, the Hon Rob Hulls MLA and the Bracks Government. A legitimate exam question might consider whether the Victorian Parliament requires a special majority to privatise Victoria’s water delivery services. Water delivery services receive entrenchment protection under section 18 of the Victorian Constitution. The short answer is probably not, but a proper answer will take a quick detour via the powers of colonial parliaments vis-à-vis the Imperial Parliament and the concept of plenary legislative powers; The Australia Act (1986); and a dispute arising from the West Australian Parliament resulting in a High Court case known as Marquet.
The legal answer is interesting but why the hell are we talking about water delivery services in the first place? Australian constitutions at both a State and Federal level have displayed a penchant for prosaic minimalism acting as dry rule books without the flair or expansiveness seen in other codified constitutions like that of the United States. Yet here in Victoria we find a constitution not only mentioning but attempting to entrench the management of water delivery by public authorities. What the?
The answer is politics. The Hon Jeff Kennet was a Liberal Premier in the 1990s who privatised a number of public assets during his tenure including parts of Victoria’s power system. The Hon Steve Bracks beat Kennett at an election in 1999 to form a Labor Government. During his second term as Premier, whilst overseeing the reform of the Victorian Constitution Bracks’ Government decided to protect Victoria’s water authorities from any future attempt at privatisation and inserted their status as public utilities into the Victorian Constitution. In doing so Bracks and Hulls attempted to limit the legislative powers of future parliaments and laid a quaint trap for students of Constitutional law.
Thankfully the status of Victoria’s water services is not the only topic on which current and former Consti students can hold themselves out as arbiters of wisdom.
Chaos in the Senate
Section 44 of the Australian Constitution governs the qualification of individuals to sit in the Federal Parliament. It was a relatively little known provision of the constitution until it began to cut a swathe through the Federal Senate, claiming a handful of victims.
It started with Rod Culleton and Bob Day.
Rod Culleton faced theft charges which put him on the wrong side of s 44 ii) of the constitution and led the High Court to consider his eligibility. Section 44 ii) prevents anybody who has been convicted of, sentenced for or is subject to sentence for a crime punishable by more than one years imprisonment by State or Federal law, from sitting in parliament. While the High Court was considering his eligibility in relation to the theft, it came to light that Rod was also a bankrupt and he was removed from the senate.
Fortunately for those of us playing at home, that wasn’t the end of Rod’s saga. He has since sought leave to appeal to the Privy Council in England despite appeals to the Privy Council from the High court not being available on constitutional matters since 1968. He maintains he was wrongly removed from the Senate and wishes to return but his arguments have taken a turn for the worse. He now argues that Australia’s entire legal system was invalidated by a piece of legislation in 2003 and that every West Australian Senator since 2004 has been invalidly elected because Western Australia is no longer a member of the Commonwealth. This would ironically include Mr Culleton himself. So now in the course of arguing that he was validly elected, Rod Culleton has begun to argue that as a WA senator he could never have been validly elected. Good game Rod!
After Rod it was Bob.
Bob Day was found to have an indirect pecuniary interest in the lease of his own Parliamentary offices at the time of the 2016 election. This contravened section 44 v) of the constitution which prevents candidates or members of parliament having direct or indirect pecuniary interests in any agreement with the Public Service of the Commonwealth.
Bob owned a set of offices which he put in the control of a separate legal entity, apparently for the purposes of leasing them to the Commonwealth Department of Finance so that he could use them as an electorate office. The arrangement was quite complicated but the end result was that an indirect pecuniary interest flowed back to Bob. While under an old interpretation of the law Bob would have been safe, the High Court reconsidered its interpretation of s 44 v) and despite the complexity of the arrangements found that the nature of the benefit that Bob Day accrued was enough to disqualify him from parliament. \
It was well after Bob Day was disqualified that the craziness really began.
It was an austere Friday afternoon in July when Australian Greens Senator Scott Ludlum announced his resignation from the Senate. It turned out that despite serving in the Senate for a decade Scott Ludlum had accidentally retained dual citizenship with New Zealand and was therefore ineligible according to s 44 i) of the Constitution.
Section 44 i) reads:
“Any person who…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”
Ludlum moved across the Tasman from New Zealand as a three year old and took up Australian Citizenship before his ninth birthday. Ludlam stated in his press conference that he had understood that when he was naturalised as an Australian citizen, he left his Kiwi citizenship behind him therefore complying with the conditions imposed by s 44 i).
Unfortunately for Scotty, that exact situation was considered in Sykes v Cleary (no 2). If the minority of Dawson J and Gaudron J had written a majority on the subject it is possible that Scott Ludlam would have no issue. Both considered that a candidate for a by-election in 1992 had effectively renounced their allegiance to Greece for the purpose of s 44 i) when they affirmed their citizenship to Australia during the naturalisation process. Although even Gaudron J noted that was a function of the specific language used in the Citizenship oath at the time the candidate was naturalised rather than a general proposition. But the majority judgment of Mason CJ, Toohey J, Mchugh J and the concurring judgments of Brennan J and Dawson J all found that the oath of allegiance was not enough to renounce the candidate’s dual nationality and the candidate was considered to be disqualified in accordance with s 44 i). The majority held that where the individual was aware of their nationality they had to take active steps to renounce it. They also held that those steps required more than making an oath of allegiance to Australia.
It should be noted that all judgments considered the absurdity of the potential for a foreign power to bestow dual nationality on members of Parliament thereby rendering them ineligible without consent or positive action on the behalf of the individuals involved.
Scott was not the last cab off the rank though!
Next came Greens Senator Larissa Waters. Waters called a press conference on 17 July 2017 to announce that she had discovered that she had dual Australian and Canadian citizenship. Born in Canada to Australian parents, Waters had left Canada as a baby and never returned, even for a holiday. Unfortunately, she was born a week before a Canadian legislative change was enacted that would have required her to opt in to activate her citizenship rather than opt out of it. Despite not referring her matter to the High Court Larissa Waters resigned out because of section 44 i) as well. However she announced on 8 August 2017 that she has successfully renounced her citizenship and will stand as a greens candidate once again.
That brings the total number of senators who have been disqualified or resigned from the 45th Parliament to 4. But we still aren’t done yet.
Nationals Senator the Hon Matthew Canavan takes the cake for the strangest section 44 i) question so far. Senator Canavan has never lived in another country and nor did he obtain automatic citizenship by descent. Matt Canavan became an Italian citizen at the age of 25 when his mother filled out an application for Italian citizenship on his behalf without ever telling him. Thanks Mum! The result is that he has been forced to step down from the ministry while his eligibility is referred by the Senate to the high court.
When the question was raised in Sykes v Cleary (no 2) the justices were reluctant to read the law in such a way that would lead to members of parliament or candidates being disqualified in circumstances that were beyond their control. Hopefully, the High Court takes the opportunity to clarify the operation of section of 44 i) when members are reasonably unaware of their citizenship status.
Finally, One Nation Senator, Malcolm Roberts.
Questions have swirled around Senator Roberts eligibility since former Senators Ludlam and Waters resigned from the parliament. Born in India to a Welsh father, Roberts has struggled to dispel these questions. When first challenged regarding the possibility he was an Indian citizen he stated that he was a citizen only of Australia. However, revelations soon surfaced suggesting that at some point Roberts had been a British national. These included the discovery he was on a register of foreign born British nationals and immigration documents suggesting he had travelled as a British citizen as a child.
In an appearance on Paul Murray Live Senator Roberts sought to deal with these questions. He stated that he had never travelled on any passport other than an Australian Passport. A claim that was challenged on 8 August 2017 by the revelation that he had travelled on a British passport at the age of 19. He also discussed his documentation renouncing his British Citizenship.
Mr Murray confirmed that he had seen documents establishing that Senator Roberts contacted the British consulate on 1 May 2016 in an attempt to confirm he was not a British Citizen. He then emailed them again on 6 June 2016 clearly attempting to renounce his citizenship. Senator Roberts says he did not receive confirmation that his British Citizenship had been renounced until 5 December 2016. This means that he had potentially not renounced his citizenship before the close of nominations for the 2016 Federal Election on 10 June 2016.
In Sykes v Cleary (no 2) it was made clear candidates need only take all reasonable steps to renounce their foreign allegiance. At this point in time there is no absolute requirement that candidates renounce their citizenship. This leaves open that the possibility that the steps Senator Roberts took would be sufficient to avoid disqualification.
Greens leader Richard Di Natale has announced that he will move a motion in the senate to refer Roberts’ eligibility to the High Court. It is not clear at this time what the outcome of that motion will be.