OPINION Here’s a plan: the AEC can rule who qualifies

Politician in Senate

The AEC has an important role to play to ensure the confidence of the people in our system of government

First things first: The Australian Electoral Commission should tighten its procedures.

With the latest Newspoll showing voters split on whether to amend section 44, there is no clear way to fix the citizenship fiasco constitutionally before the next election. It is therefore urgent to confront head-on the unravelling challenge it poses.

There is an alluringly simple fix: ­embolden the AEC to tighten its scrutiny and compel prospective MPs to front up ­before they nominate with proof of their citizenship status.

Presently, if someone decides to nominate for parliament, the AEC is responsible for processing their nomination. Its website reminds them they must be at least 18, an Australian, and an elector entitled to vote or qualified to.

It also cautions “you cannot nominate for the Senate or the House of Representatives if you are disqualified by section 44 of the Constitution”. It lists the examples of disqualification, including being a citizen or subject of a foreign power.

But while endorsed candidates must verify the endorsement by the registered officer of the party, and unendorsed candidates must show nomination by 100 electors of the relevant division, the commission does not ask for verification of the other key factors of entitlement — all it requires is a ­declaration by the candidate that they are constitutionally and legally qualified.

This needs to be tightened.

The AEC’s process must be updated to include verification of whether a candidate is eligible to nominate for parliament.

Once Australian citizenship has been ­established, a candidate would then also need to show they are not a citizen of ­another country or if they are, that they have done all that is formally required to renounce their citizenship. This means a candidate would have undertaken all that the other country requires from them, unless the requirement is unreasonable.

Reportedly, there is a dispute among ­experts about whether a candidate would need the renunciation finalised by the other country before the nomination date.

The High Court decision is clear, in my view. It said: “Where it can be demonstrated that the person has taken all steps that are reasonably required by the foreign law to ­renounce his or her citizenship and within his or her power the constitutional imperative is engaged.”

Given no Australian has the power to manage another country’s processes for registering the renunciation, then once the nominee has done all that he or she is “reasonably required” to do by the other country, they no longer fall under s 44(I).

Indeed, the formal recognition (whenever that occurs) by the other country ­becomes further proof that they did what was needed. This must be so, in the same way the court recognised the “constitutional imperative” would be otherwise undermined by a mischievous country, making all Australians its citizens. If an Australian citizen has done all they personally can do, according to that country’s law, to renounce that country’s citizenship, but is then prevented from nominating because of another country’s processing time, that too would “undermine the system of representative and responsible government established under the Constitution”.

This verification process is not onerous — all a nominee needs to show the AEC is the birth place and citizenship of their parents and grandparents, or if they have married a person with citizenship from another country, identify that country, and then contact each of those country’s embassies with that information for a formal statement on whether they are regarded as a citizen.

Once that formal statement is received, if it turns out the candidate does need to renounce, then they need evidence of how they have followed the procedures identified by that country to do so. It would be for the AEC, in the first instance, to see if the candidate has evidence of doing everything required.

If the AEC is not clear about this or a country refuses to assist in making citizenship status clear, it would only then need the High Court, sitting as the Court of Disputed Returns, to be the final arbiter if someone disputes the nominee’s eligibility.

This more elaborate verification process is required due to two significant and indeed positive changes in Australia’s evolution as an independent nation state. We stopped being British subjects in 1987 and, with the passage of the Australia Acts 1988, made Britain a foreign power; the other significant evolution is our multicultural make-up.

Today’s dilemma affirms how successful our democracy has been in enabling first-generation Australians to affirm their Australian citizenship by actively nominating for parliament. Of course, in a representative democracy where dual citizenship has been fully affirmed since 2002 in legislation, it is anomalous that we haven’t sooner moved to repeal section 44(I).

Of course, this requires an amendment to the Constitution — another story, but not one as complex or as doomed as the history of constitutional change suggests. The key component on all of this is political leadership and will to craft a better polity than is currently the case. Our democracy will be all the richer and representative of our truly ­independent and multicultural society when this is done.

In the meantime, however, short of constitutional change, the AEC has an important role to play to ensure the confidence of the people in our system of government.

This article was first published in The Australian newspaper and online on 20 November, 2017.

Updated:  10 August 2015/Responsible Officer:  College General Manager, ANU College of Law/Page Contact:  Law Marketing Team