Constitutional Critique

This blog post is by CRU Intern, Ashley Kelaita:
Since late last year, the Australian Commonwealth Parliament has been plagued by a dual citizenship imbroglio, resulting in the disqualification of several parliamentarians under section 44(i) of the Constitution and a string of resignations. This ‘saga’ has directed attention towards the scope and operation of section 44(i), resulting in calls for constitutional amendment by academics and politicians alike –– most recently by the Joint Standing Committee on Electoral Matters (JSCEM) in May 2018. This article will first outline section 44(i)’s operation in light of the High Court’s decisions in Re Canavan [2017] and Re Gallagher [2018], canvas the previous reform proposals, and end with a discussion on the key possibilities for future reforms.
Section 44(i): Purpose and Operation
Section 44(i) of the Constitution provides:

44. Disqualification
Any person who:
(i) 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 a citizen of a foreign power;
shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.

The purpose of section 44(i) is to prevent members of the Commonwealth Parliament from having split allegiances, and, in turn, to mitigate the risk of foreign interference in the Australian parliament. Concerns about split allegiance were raised in the Australasian Federal Convention debates, during which members commented that persons possessing a dual allegiance were ‘not to be trusted’.
Section 44(i) contains two distinct limbs. The first limb prohibits a person who is ‘under any acknowledgement of allegiance, obedience or adherence to a foreign power’ from standing for election or sitting in the Commonwealth Parliament. This limb captures those who have voluntarily acknowledged allegiance, obedience or adherence to a foreign power and, according to the High Court in Re Canavan, focuses on the ‘conduct of the person concerned’. Conversely, a person is rendered incapable of standing for election or sitting as a senator or member under the second limb if they are a ‘subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power’. This is a matter to be determined by the relevant foreign law, and focuses on the existence of a state of affairs rather than the person’s conduct. A candidate or member may therefore be disqualified under section 44(i) even if they are unaware of their foreign citizenship status.
In Re Canavan the High Court, sitting as the Court of Disputed Returns, drew on the previous case of Sykes v Cleary and held that Australian dual citizens will not be disqualified under section 44(i) if they have taken ‘reasonable steps’ within their power to renounce their foreign citizenship. This exception is underpinned by the ‘constitutional imperative’ that ‘an Australian citizen not be irremediably prevented by foreign law from participation in representative government’. The narrow scope of the ‘reasonable steps’ test was emphasised in Re Gallagher, where the High Court held that the test will only apply in circumstances where foreign law presents an ‘insurmountable obstacle’ to renunciation; in other words, where renunciation is impossible or not reasonably possible under the relevant foreign law. Anything less than this standard will not engage the constitutional imperative. These recent decisions have sparked debate as to whether section 44(i) is fair and should remain in Australia’s Constitution.
Previous Reform Proposals
Section 44(i) has been the subject of many reviews since the early 1980s.
The Senate Standing Committee on Legal and Constitutional Affairs recommended in its 1981 report that section 44(i) be deleted. The Senate Committee was concerned that section 44(i) would bar all Australian dual citizens –– including those whose foreign citizenship could not be ‘voluntarily relinquished’ under the relevant foreign law –– from standing for election or sitting in the Commonwealth Parliament. Notwithstanding these concerns, the Committee recognised that section 44(i) contained important safeguards which were worth preserving. It further recommended that a provision be inserted in the Commonwealth Electoral Act 1918 requiring candidates for election to disclose any non-Australian nationality and state that they have ‘taken every reasonable step’ to ‘divest themselves of the non-Australian nationality’. The provision would also require candidates to state that they will not take ‘conscious advantage of any rights, privileges or entitlements’ conferred by their ‘unsought nationality’.
In 1985, the Structure of Government Sub-Committee of the Australian Constitutional Convention expressed agreement with the 1981 Senate Standing Committee recommendations in its Report on Constitutional Qualifications of Members. However, the Sub-Committee noted that the Senate Standing Committee did not address the situation where a member ‘voluntarily acquired another nationality after election’. The Sub-Committee further recommended that a provision be inserted in the Constitution requiring members and senators to vacate their seat in the event that they cease to be an Australian citizen, with a ‘general power for Parliament to deal with other situations as they arise’.
The 1985 Brisbane Session of the Australian Constitutional Convention expressed its support with the recommendations of the 1981 Senate Standing Committee and 1985 Structure of Government Sub-Committee, and moved a motion supporting constitutional amendment of section 44(i). The Brisbane Session recommended that section 44(i) be amended along the following lines:

(i) By his own volition is under any acknowledgement of allegiance, obedience, or adherence to a foreign power, or is voluntarily a subject or a citizen entitled to the rights of a subject or a citizen of a foreign power and retains such rights, privileges and duties. Provided that this subsection does not apply to a person who is vested with citizenship involuntarily and who has made all reasonable efforts to renounce a foreign citizenship or other allegiance, obedience, or adherence to a foreign power.

The members of the Brisbane Session raised similar concerns to the 1981 Senate Standing Committee: particularly, the unfairness raised where an Australian dual citizen is unable, under the laws of the relevant foreign country, to relinquish their foreign citizenship. However, the Brisbane Session members still agreed that it would be inappropriate for a senator or member to ‘voluntarily maintain a second citizenship’.
The 1988 Constitutional Commission recommended that section 44(i) be deleted and not replaced, with Australian citizenship being the only minimum requirement for nomination and election. The Commission’s reasoning was centred on the view that section 44(i) was ‘absolute’ and ‘unqualified’ in its operation, and would exclude Australian dual nationals from being members of the Commonwealth Parliament even if they were unable to relinquish their foreign citizenship under the laws of a foreign country. In making this recommendation, the Commission drew on the 1987 report of the Advisory Committee to the Constitutional Commission on Individual and Democratic Rights, which recommended that a referendum be called to amend section 44(i) given its rigid and inflexible operation.
It is important to note that all of the above recommendations pre-dated the High Court’s interpretation of section 44(i)’s operation in Sykes v Cleary; where the Court held that section 44(i) will not disqualify Australian dual citizens who have taken ‘reasonable steps to renounce their foreign citizenship’. This case eliminated concerns that section 44(i) had an overly-restrictive operation and would disqualify Australian dual citizens who were unable to renounce their foreign citizenship under foreign law. As the above committees and conventions were motivated by this concern in their recommendations to delete or amend section 44(i), one must question whether these recommendations would have been the same post-Sykes v Cleary.
In 1997, the House of Representatives Standing Committee on Legal and Constitutional Affairs recommended that section 44(i) be deleted and that parliament be empowered to ‘enact legislation determining the grounds for disqualification of members in relation to foreign allegiance’. The Committee highlighted the need to ensure that parliamentarians have undivided loyalty to Australia, but considered section 44(i) to be out-dated as it is expressed in ‘archaic’ language and was drafted before the concept of Australian citizenship existed. Despite calling for section 44(i)’s removal from the Australian Constitution, the Committee recommended that appropriate legislative safeguards be introduced to prevent divided loyalty. The Committee expressed a preference for the following legislative protections: (1) An amendment to the Commonwealth Electoral Act 1918 prohibiting candidates from taking advantage of any foreign citizenship or engaging in any activities that may be construed as acts of allegiance to a foreign country; and requiring candidates to record their date and place of birth on their nomination form; or (2) That the text of section 44(i) be preserved in legislative form. These recommendations were supported by the Australian Citizenship Council’s 2000 report Australian Citizenship for a New Century.
Section 44(i) was also considered by the JSCEM in its inquiry into the 1996 and 1998 federal elections. In 1996, the JSCEM proposed that section 44(i) be deleted as it would be ‘reasonable in contemporary Australia’ for candidates and members of parliament to hold dual citizenship. Candidates would, however, be required to declare any foreign citizenship on their nomination forms. In its 1998 inquiry, the JSCEM recommended that a referendum be held to amend section 44(i) so that a candidate’s act of nomination is recognised as ‘immediately extinguishing any allegiance to a foreign country’, provided that the candidate also held Australian citizenship.
The JSCEM most recently considered section 44(i) in its May 2018 report Excluded: The Impact of Section 44 on Australian Democracy. The report recommended that a referendum be called to either repeal sections 44 and 45 of the Constitution in their entirety, or amend sections 44 and 45 to include the words ‘Until the Parliament otherwise provides’. If the referendum passes, the JSCEM further recommended that the Commonwealth Government set out the rules governing disqualification in legislation. This would ensure that the rules are easily capable of being amended and aligned with contemporary Australian community standards. The report acknowledged that a significant portion of the Australian population are disqualified from nominating for election under section 44(i) even though they are eligible under section 34; negatively impacting political participation. The JSCEM ultimately concluded that parliamentarians must be loyal to Australia, but possessing or being entitled to dual citizenship ‘does not in and of itself’ mean that candidates have a split allegiance.
Current Reform Options
The Australian Government can embark on one of two routes: call a referendum to amend or repeal section 44(i), or leave section 44(i) in its current form. The latter option is compelling, given that the recent dual citizenship ‘saga’ was the result of the candidates’ failure to ensure compliance with section 44(i), rather than an issue with section 44(i)’s underlying principle.
The High Court’s recent decisions in Re Canavan and Re Gallagher also dispel the previous uncertainties regarding section 44(i)’s operation; particularly the scope of the ‘reasonable steps’ test. Therefore, candidates are now more cognizant of the requirements under section 44(i), and will arguably take the necessary steps to ensure compliance with the section in the future.
The main shortcoming with section 44(i)’s operation is that it may result in disadvantages for certain candidates. As slow processing itself does not amount to an ‘insurmountable obstacle’ to renunciation, it will not fall within the scope of the ‘reasonable steps’ test. Prospective candidates attempting to renounce their foreign citizenship from countries that have significant bureaucratic delays will be at a disadvantage in the case of snap elections. However, this is not an overwhelming factor in favour of repealing the entire provision. Candidates will merely need to ensure that they lodge the relevant paperwork well in advance if they expect to nominate for election in the future.
Difficult cases where renunciation of the relevant foreign citizenship is impossible or not reasonably possible will fall within the ‘reasonable steps’ exception. Leaving section 44(i) in its current form would ensure that members of the Commonwealth Parliament have a sole allegiance to Australia –– a value which remains important in Australia, especially in a time of anxiety about foreign interference. Additionally, steps to mitigate the impact of section 44(i), such as advice by the Australian Electoral Commission to prospective electoral candidates regarding foreign citizenship laws and renunciation processes, would also be useful.
If Parliament decided that a referendum was to take place, the recent recommendations of the JSCEM to insert the clause ‘Unit the Parliament otherwise provides’ in sections 44 and 45, or repeal those sections altogether, would likely be the preferred proposals. Many submissions to the 2018 JSCEM inquiry supported these proposals on the grounds that attitudes towards dual citizenship have shifted in Australia; especially after the 2002 amendments to the Australian Citizenship Act 1948 which allowed Australians to acquire a foreign citizenship without forfeiting their Australian citizenship. However, a successful referendum in the current political climate is unlikely.
Firstly, the chances of a successful referendum are slim, with only 8 of 44 referendum proposals being successful in the past. Secondly, a referendum to repeal or amend section 44(i) would require strong bipartisan support in order to have any chance of succeeding. Establishing this bipartisan support would be difficult, given the Prime Minister’s opposition to holding a referendum. The Australian public may also view a referendum to amend or repeal section 44(i) as a self-serving attempt by parliamentarians to remove these impediments to eligibility for political office, instead of holding a referendum on more pressing issues such as Indigenous constitutional recognition.
SUGGESTED CITATION: Ashley Kelaita, ‘Section 44(i) of the Constitution: Where to from here?’, Constitutional Critique, 5 June 2018, (Constitutional Reform Unit Blog, University of Sydney, http://blogs.usyd.edu.au/cru/).

This post was contributed by Georgia Allen, a CRU Intern:

S 44 – Disqualification
Any person who:
(v) has any direct or indirect pecuniary interest in any agreement with the Public Service of the Commonwealth otherwise than as a member and in common with the other members of an incorporated company consisting of more than twenty-five persons;
shall be incapable of being chosen or sitting as a senator or a member of the House of Representatives.

In April 2017, the Full Bench of the High Court, sitting as the Court of Disputed Returns, held in Re Day that Senator Bob Day was “incapable of” (i.e. disqualified from) sitting as a Senator by virtue of section 44(v) of the Constitution. Day had sought to avail himself of the rental income from his Commonwealth-funded office accommodation entitlement whilst avoiding the operation of section 44(v), by interposing an elaborate web of companies and trusts between himself and a property he beneficially owned, which was subsequently leased by the Commonwealth to house his electorate office. This attempt failed.
The Full Bench held that Day had an indirect pecuniary interest in the lease between the Department of Finance and the registered proprietor of the building (a company called Fullarton Investments, which was the trustee of the Fullarton Road Trust, of which the Day Family Trust was a beneficiary), as the recipient company name and bank account nominated by Fullarton Investments to receive payments from the Commonwealth under the lease were owned by Day. As such, Day became disqualified from sitting in the Senate by at least February 26, 2016, the date that the direction for the payment of rent into Day’s bank account was first given.
In doing so, the High Court unanimously overruled the only prior decision on the operation of section 44(v). In Re Webster, a 1975 case, Chief Justice Barwick sitting alone as the Court of Disputed Returns adopted a restricted (and arguably obsolete) purposive construction of section 44(v) that confined the section to pecuniary interests in agreements with the Commonwealth Public Service which could result in influence by the Executive over the parliamentarian in relation to parliamentary affairs, by the very existence of the agreement or by something done or refrained from being done in relation to the agreement or its subject matter.
In Re Day, the High Court emphasised that the Founders’ intention for the section was actually two-fold, with section 44(v) introduced for the dual purposes of: (1) protecting against conflicts of interest that might lead a parliamentarian to give priority to his or her own pecuniary interests over the public interest; and (2) the avoidance of Executive influence over the Parliament. Furthermore, the inclusion of indirect pecuniary interests and the 25-shareholder company exception to section 44(v) both demonstrate that parliamentarians cannot interpose companies or other entities to cloak their pecuniary interests.
Whilst it is now clear that section 44(v) prohibits a broader range of interests than previously thought, significant uncertainty remains about the outer limits of the section. Issues such as are State-owned corporations part of the “Public Service of the Commonwealth” and how far removed must an indirect pecuniary interest in an agreement be before it falls beyond the scope of the section are currently unresolved. The Alley v Gillespie case, presently before the High Court, should elucidate these issues further.
ALLEY V GILLESPIE
Dr David Gillespie, Nationals MP and the current Assistant Minister for Health, replaced Rob Oakeshott MP as the member for Lyne in the House of Representatives in the September 2013 election, and was subsequently re-elected in July 2016. Goldenboot Pty Ltd, Gillespie’s family company, owns a shopping centre complex in Port Macquarie and one of its tenants has a licensing agreement with Australia Post to operate as an Australia Post outlet.
Peter Alley, the unsuccessful Labor candidate for the seat of Lyne in the 2013 and 2016 elections, has brought an action under the Common Informers (Parliamentary Disqualifications) Act 1975 challenging Gillespie’s eligibility for office. Alley argues that Gillespie has an indirect pecuniary interest in an agreement with the Commonwealth Public Service (namely, the licensing agreement with Australia Post) contrary to section 44(v), rendering him incapable of sitting as a member of the House of Representatives. Furthermore, if this licensing agreement was executed prior to the 2013 and/or 2016 elections, it is argued that Gillespie was “incapable of being chosen” under section 44(v) (i.e. standing for election in the first place).
In a Directions Hearing on 29 September 2017, Bell J referred two preliminary questions to the Full Bench of the High Court under section 18 of the Judiciary Act 1903. In short: (1) can and should the High Court decide whether Gillespie is a person declared by the Constitution to be incapable of sitting as a member of the House of Representatives under the Common Informers Act, and (2) if yes, whether the policy of the law regarding common informers directs the High Court to refuse to issue subpoenas by which to establish the relevant facts of the case. The Court will consider these preliminary issues at a hearing on 12 December 2017. Whether Gillespie’s eligibility under section 44(v) will be considered by the High Court will depend upon the outcome of that hearing.
THE AUSTRALIA POST OUTLET AND SECTION 44(V)
Agreement with the “Public Service of the Commonwealth”
Alley’s case may well fall at the first hurdle if it cannot be demonstrated that Australia Post, a government business enterprise, is a part of the “Public Service of the Commonwealth”.
Keane and Gageler JJ mounted convincing arguments in separate judgments in Re Day, that the reference to “the Public Service of the Commonwealth” imposes a textual limitation on the scope of the section. The “Public Service of the Commonwealth” refers to those officers of the Executive Government of the Commonwealth within the departments of State, as described in section 64 of the Constitution, and not to “the Commonwealth” as a whole. The accompanying sections in Part IV of the Constitution support this distinction – the “Public Service of the Commonwealth” can be contrasted with the broader references to “the Crown” in section 44(iv) and “the Commonwealth” in section 45(iii).
On the other hand, Nettle and Gordon JJ argued that this distinction “is without practical or legal content”, as all agreements made in the course of Commonwealth government business will ordinarily be negotiated by members of the Public Service of the Commonwealth. This interpretation is less persuasive. The fact that a public servant has negotiated an agreement does not necessarily mean that the agreement can be characterised as one with the Public Service of the Commonwealth, unless one of the departments or its officers is a party to it.
As the joint judgment of Kiefel CJ, Bell and Edelman JJ did not address this issue, however, it is unclear how the Full Bench will characterise “the Public Service of the Commonwealth” in Alley v Gillespie.
Tony Blackshield has suggested that the parties’ arguments will surround the precise effect of the Australian Postal Corporation Act 1989 on the status of Australia Post and may make reference to sections such as: the community service obligations and general governmental obligations imposed on Australia Post under sections 27-28, the fact that Australia Post is not subject to direction by or on behalf of the Commonwealth Government under section 50, and the fact that Australia Post does not have an entitlement to any immunity or privilege of the Commonwealth under section 90A.
As a result of its corporatisation in 1989, it could be held that Australia Post is no longer a part of “the Commonwealth” at all, but is merely a company owned by the Commonwealth with separate corporate personality. If this is incorrect, however, it may be the case that an agreement with Australia Post is an agreement with “the Commonwealth” but not with the “Public Service of the Commonwealth”, as Australia Post is not a section 64 department.
Direct or indirect pecuniary interest in an agreement
It is clear from Re Day that a “pecuniary interest” is an interest sounding in money or money’s worth, and may consist of a gain or loss. It is also apparent that a pecuniary interest does not have to be a legal, equitable or legally enforceable interest, with regard had to the practical consequences of the performance or non-performance of the agreement.
Furthermore, all judgments recognised that agreements ordinarily entered into by the Commonwealth with its citizens (such as the payment of a passport fee to the Department of Foreign Affairs, for example) are not within the ambit of section 44(v). As stated by Keane J, “[g]iven the purpose that informs section 44(v), there is no reason to expand its disqualifying effect to any person who might obtain a pecuniary benefit [or loss] conferred by the Commonwealth which is available generally to the community.” Instead, the textual limitations restrict the section to agreements giving rise to a particular interest in an individual case which may result in a conflict of duty and interest.
The distinction between a contract ordinarily entered into and a contract giving rise to a particular interest in an individual case, however, is difficult to determine. Whether a licensing agreement is a type of contract ordinarily entered into by the Commonwealth and its citizens, for example, is open to debate – Australia Post’s franchise model means that such an agreement is available to ordinary members of the public, however, the fact that the licensing agreement is not a day-to-day transaction may give it a special character.
Finally, all judgments accepted that the mere possibility of a pecuniary benefit conditional upon the exercise of another’s discretion is enough to trigger the section, such as distributions under a discretionary trust or the payment of dividends to a shareholder at the discretion of the board. Beyond this, however, no bright line emerges from the four judgments in Re Day regarding when an indirect or direct pecuniary interest will be “in” an agreement.
The Court rejected the Commonwealth Attorney-General’s submission that section 44(v) should apply when, objectively, there is a real risk that a person could be influenced, or be perceived to be influenced, in relation to parliamentary affairs, by a direct or indirect pecuniary interest, as a reliance on perception is vague, impressionistic and/or evaluative. Gageler J instead suggested that there must be a “practical commercial likelihood” of a conflict of interest, whereas Nettle and Gordon JJ held that it would be sufficient if the parliamentarian “could conceivably be influenced”. What is required to satisfy these thresholds however, remains unclear.
Similarly, what constitutes an “indirect pecuniary interest” is also uncertain. Although a majority of the court approved the definition of an indirect interest given by Gavan Duffy J in Ford v Andrews (Gageler, Keane, Nettle and Gordon JJ), the definition itself is open to interpretation.

A man is directly interested in a contract if he is a party to it, he is indirectly interested if he has the expectation of a benefit dependent on the performance of the contract; but in either case the interest must be in the contract, that is to say, the relation between the interest and the contract must be immediate and not merely connected by a mediate chain of possibilities.

For example, Gillespie’s alleged indirect pecuniary interest could be viewed by the Court as connected to the licensing agreement by a mediate chain of possibilities rather than being “in” the licensing agreement itself. Arguably, Gillespie’s indirect pecuniary interest is actually in the payment of rent under the lease, which may or may not depend on the tenant being licensed to operate as an Australia Post outlet.
On the other hand, in having regard to the practical consequences of the performance or non-performance of the licensing agreement, it could be argued that as a shareholder in the landlord company, Gillespie has an indirect financial interest in the agreement between Australia Post and the tenant staying on foot, as a termination of the agreement may result in the loss of rent. This “could conceivably” result in a conflict of interest should Australia Post be the subject of parliamentary business. How this potential conflict of interest could affect Gillespie’s capacity to operate impartially, however, is questionable, unless the Parliament sought to legislate to close all Australia Post outlets, for example.
The meaning of a “mediate chain of possibilities” cannot be ascertained from the reasoning in the three judgments that adopt it either. Gageler, Nettle and Gordon JJ all held that Day had three potential indirect disqualifying pecuniary interests in the lease, including that the rental monies would eventually be used to help repay a bank loan of which Day was guarantor, even though the rent would have to change hands three times before it reached the bank, if it did at all. As such, Day’s interest in the payment of rent in his capacity as guarantor does not appear immediate, but rather connected to the lease by a mediate chain of possibilities.
In short, how far removed an indirect pecuniary interest must be from the underlying agreement for it to fall outside of section 44(v), and thus whether Gillespie’s shareholding in Goldenboot can give rise to a pecuniary interest in the licensing agreement, remains unclear.
PROPOSALS FOR REFORM
Whilst the other subsections of section 44 have been the topic of regular analysis and debate since the 1980s, very few have considered reform of section 44(v) in depth.
In 1981, the Commonwealth Parliament’s Standing Committee on Constitutional and Legal Affairs recommended in its report The Constitutional Qualifications of Members of Parliament that consideration should be given to the need for amendment to section 44(v), despite the section being beyond its terms of reference. The Committee was concerned that candidates and members may be unwittingly disqualified as a consequence of its operation. The Government Response stated that the Attorney-General would give further consideration to this issue with a view to developing a specific proposal for reform, however, no such proposal was developed.
The 1988 Constitutional Commission recommended that the Constitution be reformed to explicitly provide that Parliament have the power to disqualify a member of Parliament who holds interests which might constitute a risk of a conflict of interest. Such a change does not appear necessary after the decision in Re Day.
The Australian Democrats have on four separate occasions proposed bills to address the perceived limitations of section 44, but none were fully debated nor passed into law. For example, the Constitution Alteration (Qualifications and Disqualifications of Members of the Parliament) Bill 1992 proposed to give the Parliament the power to make laws with respect to “the interests, direct and indirect, pecuniary or otherwise, the holding of which by a person shall render him incapable of being chosen or of sitting as a senator or a member of the House of Representatives” in a new section 45A.
Unless the High Court sheds more light on the limits of section 44(v) in Alley v Gillespie, reform to the section may be desirable to ensure the greatest certainty of operation for parliamentarians. As the joint judgment of Kiefel CJ, Bell and Edelman JJ forcefully opined, section 44(v) has a “special status” as it is “protective of matters which are fundamental to the Constitution, namely representative and responsible government in a democracy.” It cannot fulfil this important function, however, if Senators and members of the House of Representatives do not know where they stand.
Whether the Parliament would be brave enough to propose a reform to section 44(v) and whether the Australian public would be willing to vote for it in a referendum, however, seems unlikely in the current political climate. Such a proposal would arguably be viewed as self-serving and unnecessary – designed to cloak the perceived incompetence of the politicians and political parties impugned in the Citizenship Seven saga rather than to serve a purpose that is in the national interest.
SUGGESTED CITATION: Georgia Allen, ‘Alley v Gillespie and the Uncertain Scope of Section 44(v)’, Constitutional Critique, 8 November 2017, (Constitutional Reform Unit Blog, University of Sydney, http://blogs.usyd.edu.au/cru/).

This post was prepared by Christie Chang Ching Wilson, an intern of the Constitutional Reform Unit.
In 2017, almost two decades after the unsuccessful republic referendum of 1999, Australia remains a constitutional monarchy. Despite the great support behind the nation’s republican movement in the 1990s from many politicians and members of the public, some perceive Australia as being no closer to changing its constitutional arrangements. This blog-post seeks to evaluate the likelihood of another republic referendum being proposed in the next decade and the issues that must be faced.
Australia’s current constitutional arrangements
Contrary to common misconceptions, Australia has already achieved complete autonomy from the United Kingdom. Although it is not entirely clear when this constitutional independence was attained, the High Court of Australia in Sue v Hill held that it was no later than the passage of the Australia Acts 1986.
Despite our nation’s colonial ties having already been severed, Her Majesty Queen Elizabeth II remains Australia’s Head of State, with the Governor-General acting as her representative. The Head of State is the highest-ranking constitutional office in Australia. The Queen appoints the Governor-General on the advice of the Prime Minister. For this reason, the office of Governor-General can be described as being entirely Australian in character; the Governor-General, an Australian, is chosen by the Australian Head of Government and appointed by the Head of State of Australia.
Under s 61 of the Constitution, the Commonwealth’s executive power is vested in the Queen and made exercisable by the Governor-General. In relation to Australian national affairs, the Queen and her vice-regal representative, the Governor-General, act upon the advice of the Prime Minister. However, the Governor-General also possesses certain reserve powers. These powers are not codified and are underpinned by constitutional conventions. Reserve powers include the ability to appoint and dismiss the Prime Minister.
As Australia has already achieved complete autonomy from the United Kingdom, the Queen’s role as Australian Head of State is largely reflective of a bygone era. When Australia does become a republic, it will not necessarily affect its membership in the Commonwealth of Nations. It is no longer the case that Commonwealth Realms have to apply for readmission to the Commonwealth when they become a republic.
The 1999 referendum
As the twentieth century came to a close, the republic issue was propelled to the fore, influenced by factors such as a burgeoning national pride and a growing recognition of Australia’s place in the Asian region. As Australia has a rigid Constitution, a referendum is required to make any constitutional amendments. For a proposed law to be successful at referendum, it needs to be approved by a majority of electors in the majority of States, in conjunction with a majority of the electors overall.
On 6 November 1999, Australian electors were asked in a referendum whether they approved of:

A proposed law: To alter the Constitution to establish the Commonwealth of Australia as a republic with the Queen and Governor-General being replaced by a President appointed by a two-thirds majority of the members of the Commonwealth Parliament.

Under the proposed law, the President, who was to become the nation’s Head of State, was largely to assume the same powers that the Queen and Governor-General had enjoyed.
This proposed law was rejected in all Australian States. A total of 55% of electors nationally responded with a “no” vote. Only in the Australian Capital Territory did the proposal succeed with 63% of electors voting “yes”. This outcome was in direct contrast to the findings of public polls conducted between 1998 and 1999, where a large portion of the participants had indicated that Australia should become a republic. A number of factors can be identified as leading to the rejection of the proposed law; however, for the present purposes, the focus will be on the issue of a directly elected President.

Directly elected President
Under the proposed law, the President was to be elected by a two-thirds majority of the members of Parliament. Interestingly, in studies conducted after the 1999 referendum, a significant percentage of electors who had voted against Australia becoming a republic indicated that they would have voted “yes” had the appointment of the President been decided by a direct election. These findings suggest that electors who voted “no” may still have supported Australia becoming a republic, but just desired a more democratic form of choosing the President. A directly elected President had been suggested in the debates leading up to the referendum. However, it was ultimately rejected at the 1998 Constitutional Convention in favour of the parliamentary election model.
As such, it can be suggested that if a republic referendum is proposed once more, it would be more likely to succeed if it provided for a directly elected President. However, a more democratic model brings several problematic issues. For example, where the President is directly elected by the nation, it may lead to both the public and the President believing that the President holds a direct popular mandate, unlike the Prime Minister. This may lead to the President overstepping the traditional boundaries of the role. To safeguard against this, the President’s powers, including the reserve powers, could be more clearly defined and limited in the Constitution. Nevertheless, there are significant risks in codifying the President’s reserve powers. It is important to leave a level of flexibility to allow the President to respond to varying circumstances.
A direct election of the Head of State would involve a national vote; this would require a nationwide election campaign. As such, to be a successful Presidential candidate, an individual would need the financial means to launch this widespread campaign. This may restrict the Presidential candidates to individuals of sizeable wealth, such as celebrities, or those who have the backing of a political party.
Some academics have raised the concern that politicians may be incapable of maintaining the impartiality needed of a President. While this has not proved the case when politicians have fulfilled the vice-regal role of representing the Queen, it may be different if they are directly elected and are not someone else’s representative. These are all issues that will need to be given consideration when proposing a structure for an Australian republic.
Likelihood of a republic referendum in the near future
Academics have noted that over the course of the last eighteen years, advocacy for an Australian republic has diminished. However, in recent months, Opposition Leader Bill Shorten has promised that as Prime Minister he will hold a republic vote during his first term. This plebiscite will ask: “Do you support an Australian Republic with an Australian Head of State?” If it receives a majority ‘yes’ vote, a referendum will then follow.
Shorten’s proposal has been met with criticism, especially from monarchist politicians, such as Tony Abbott. The Australian public itself may also not be entirely receptive to the government carrying out another plebiscite, so close to the same-sex marriage postal survey, which cost the public approximately $122 million. The holding of a referendum – necessary to alter Australia’s constitutional arrangements – would also involve an additional cost (the 1999 republic referendum cost $66 million). As such, it is possible that even if Shorten is elected as Prime Minister, the lack of public support for a republic plebiscite may discourage the Labor Party from fulfilling this promise.
Turning away from Shorten’s proposal, whether or not another republic referendum will be put to the public in the near future rests on several factors. Given the current lack of public interest in Australia’s constitutional arrangements, the occurrence of a major event may be necessary to revive discussions on whether or not Australia should have an Australian Head of State. An example of such an event would be the death of Her Majesty Queen Elizabeth II. It is possible that the Queen’s death may prompt nostalgic sentiments for the British monarchy amongst the Australian populace, diminishing support for a republic. However, the prospect of the still fairly unpopular Prince Charles – who surveys say that only 34% of the British populace would like to succeed the Queen – becoming King of Australia may be sufficient to dampen such sentiments and provide the needed impetus for a republic referendum.
Before such an event occurs, other matters are likely to continue to dominate public discussion about constitutional reform. For example, the issue of amending the Constitution to give Aboriginal and Torres Strait Islander peoples a more direct voice in Parliament has stimulated greater public attention than the republic in recent times.
Finally, the 1999 referendum’s lack of success may discourage politicians from pursuing another republic referendum if there is not a sufficiently strong public movement for such change. The failure of a referendum is neither conducive to the republican cause nor helpful for the political standing of a government.

Conclusion
While Prime Ministers Kevin Rudd, Julia Gillard and Malcolm Turnbull all supported a republic, none was prepared to spend the necessary political capital on pursuing a referendum. While Bill Shorten may buck the trend by keeping his commitment to hold a republic referendum if he becomes Prime Minister, the greater likelihood is that a republic referendum will be spurred by a major event, such as the death of Queen Elizabeth II. When another referendum is proposed, it will be important to analyse the reasons behind the 1999 referendum’s failure in order to help ensure its success.
SUGGESTED CITATION: Christie Chang Ching Wilson, ‘God save the President: The Likelihood of an Australian Republic in the Twenty-First Century’, Constitutional Critique, 7 November 2017, (Constitutional Reform Unit Blog, University of Sydney, http://blogs.usyd.edu.au/cru/).

This post is by Elisa Arcioni and Helen Irving. It is an edited version of a post originally published by the GLOBALCIT Citizenship Blog.
A recent drama concerning the citizenship status of seven members of the Australian Parliament has drawn attention to the complex legal landscape surrounding multiple nationality, as well as the specific meaning of a provision of the Australian Constitution that governs eligibility to stand for, or serve in, the Australian Parliament. The provision – section 44 – sets out a range of grounds of ineligibility. Section 44(i) specifically provides that any person who

‘is under any acknowledgment 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 a citizen of a foreign power … shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.’

Additionally, under Australian legislation, candidates must be Australian citizens.
The meaning of section 44(i) was first explored in depth by the High Court of Australia in 1992, in the case of Sykes v Cleary (1992) 176 CLR 77. The case involved a challenge to the eligibility of several candidates in a 1992 by-election for the House of Representatives. Among them were two men, Bill Kardamitsis and John Delacretaz, who had been naturalized as Australians, but who – it transpired – had retained their original nationality (Greek and Swiss respectively).
The Court concluded that both Kardamitsis and Delacretaz were caught by the section, as they had not taken sufficient legal steps to discharge or renounce their foreign nationality. Each of them had expressly renounced their foreign allegiance during their respective naturalization processes. However, they had either not sought the appropriate executive permission or approval to discharge their non-Australian citizenship (under Greek law) or completed the available form demanding release from their non-Australian citizenship (under Swiss law)
The Court’s approach of focusing on the legal steps under the relevant foreign law was tempered, to a degree, by reference to the substantive connection (or lack thereof) to the foreign country in question. In a lengthy reflection on the Nottebohm case: Liechtenstein v. Guatemala [1955] ICJ Rep 4 (6 April), in which the International Court of Justice held in 1955 that true citizenship was to be determined by a ‘close connection’ with a State, the Court acknowledged that Kardamitsis, since coming to Australia (23 years earlier, at the age of 17), had not maintained any substantive connection to his country of birth, noting:

The centre of his interests is Australia, not Greece. His principal family ties are with Australia, not Greece. He has participated in public life in Australia and seeks further such participation. He has had no such participation in Greece and seeks none. He has a bond of attachment with Australia and not with Greece …

The issue of ‘connection’ was relevant because the Court had stated that:

What amounts to the taking of reasonable steps to renounce foreign nationality must depend upon the circumstances of the particular case. What is reasonable will turn on the situation of the individual, the requirements of the foreign law and the extent of the connection between the individual and the foreign State of which he or she is alleged to be a subject or citizen.

Despite Kardamitsis’ lack of connection to Greece, the Court concluded that, in the absence of receiving the relevant (Greek) executive approval or permission, he remained a Greek citizen and ‘entitled to the rights or privileges of a subject or a citizen of a foreign power’; he, thus, fell foul of s 44(i) of the Constitution.
Seven years later, the Court decided the case of Sue v Hill (1999) 199 CLR 462, concerning a Senator who held dual Australian and British nationality at the time of her candidature. The High Court re-affirmed its reasoning in Sykes v Cleary, and extended the category of ‘foreign power’ to Britain, Australia’s original sovereign.
These rulings govern the citizenship eligibility of candidates for the Australian Parliament. The Australian Electoral Commission advises prospective candidates who hold a foreign nationality that they will be ‘disqualified from election to Parliament if they do not take “all reasonable steps” to renounce their other citizenship before nomination’ and that ‘[t]aking all reasonable steps necessitates the use of renunciation procedures of the other country where such procedures are available.’ This advice is enforced by (at least) the major political parties in their candidate selection procedure. However, what happened this year has revealed the confusions and complexity in applying, indeed even knowing, the relevant citizenship law of other countries.
In July, a Senator from the Greens Party, Scott Ludlam, was alerted to the fact that, by birth, he held New Zealand citizenship. Recognising the constitutional disqualification, he immediately resigned from the Senate. Ludlam had moved to Australia from New Zealand at 3 years of age, was naturalized as an Australian citizen in his mid-teens and mistakenly assumed he had thereby lost his New Zealand citizenship. Alerted by Ludlam’s predicament, a second Greens Senator, Larissa Waters, became aware that, by accident of birth, she was a Canadian citizen. She, too, resigned, but following renunciation of her Canadian citizenship is set to run again for Parliament. Waters was born in Canada to Australian parents, left Canada at 11 months of age and never returned. Waters mistakenly thought she was a sole-Australian citizen (by birth to Australian parents) and that she had never held Canadian citizenship. Waters also mistakenly believed that she had to take positive steps to take up Canadian citizenship rather than having citizenship automatically conferred upon her.
Echoing other critics, Malcolm Turnbull, the Prime Minister and leader of the (conservative) Liberal Party of Australia, described the Senators’ situation as evidence of ‘incredible sloppiness’ on their part.
Stones in glass houses! Within a month, three members of the government discovered they too were dual nationals – all from the National Party with which the Liberal Party governs in coalition. First, Senator Matt Canavan, a Minister of State. Canavan’s mother, it transpired, was a dual Australian-Italian national and (so Canavan explained) had, without his knowledge ‘registered’ his Italian citizenship along with hers, when he was 25. Unlike the Greens Senators, Canavan did not resign from Parliament, but stepped down from Cabinet. Then, the leader of the National Party and Deputy Prime Minister, Barnaby Joyce, discovered he was a New Zealand citizen by descent through his father. Third was Deputy Leader of the National Party, Senator Fiona Nash, a foreign citizen by descent, through her Scottish-born father. Neither Joyce nor Nash have resigned from the Parliament or the Ministry.
Two further Senators from minor parties revealed they held foreign citizenship. One Nation Party Senator Malcolm Roberts was born in India to a Welsh father and Australian mother, moved to Australia when he was 7 and was later registered under the then relevant law as an Australian citizen. He admitted to having been a dual British and Australian citizen but has failed to produce sufficient documentation to show he had renounced his British citizenship prior to nomination. Questions were raised in the media as to whether he may also be Indian by birth. Senator Nick Xenophon, of the Nick Xenophon Team Party, discovered he held a form of British citizenship by descent from his Cypriot-born father.
Under Australian law, the Parliament may refer questions concerning the qualification of MPs to the High Court, sitting as a Court of Disputed Returns. All seven MPs implicated to date have had their eligibility referred to the Court, which has scheduled a hearing for mid-October.
Several other members of Parliament have also faced questions regarding their potential foreign nationality due to birth outside Australia (up to a further 23 members of Parliament may be implicated) or through descent from at least one foreign-born parent. Many MPs have now produced documentation to show their effective renunciation of foreign nationality prior to nomination for election.
In the event that the Court finds any of the implicated MPs to have been foreign citizens, it will then move to the question of whether, as such, they are ineligible to serve in the Parliament. The holding in Sykes v Cleary might suggest that disqualification is a foregone conclusion for them all – it appears that they all held foreign citizenship at the time of their nomination for election. But, significant factual differences complicate the precedential status of that case and suggest that further reasoning may be required. Most significantly, in both Sykes v Cleary and Sue v Hill, all of the disqualified candidates were naturalized Australians. They clearly knew that they held or had previously held a foreign nationality. By contrast, Canavan, Waters, Joyce, Nash and Xenophon are natural-born Australians and were unaware of their foreign citizenship. Does section 44(i) disqualify natural-born Australians upon whom a foreign citizenship has been conferred without their consent, willingness, or even knowledge? How, if at all, could such a person take ‘reasonable steps’ to divest themselves of an unknown foreign citizenship in order to satisfy the ruling in Sykes v Cleary?
The words of s 44 include reference to ‘allegiance’ – a notoriously slippery concept, complicated today by Australia’s and the world’s recognition (however reluctant) of dual nationality and its growing reality in many countries. Allegiance is unlikely to be fully signified in 2017 by reference to the formality of a foreign country’s citizenship law.
To date, the Court has mostly confined its definition of ‘allegiance’ to the holding of citizenship under the relevant legislation, without regard to any substantive or demonstrative character. But the majority reasoning in Sykes v Cleary itself at least leaves open a consideration of a person’s connection to a foreign country as relevant to the interpretation of s 44(i). The dissenting judgments also offer food for judicial thought.
Regarding Australian-born dual citizens, Justice William Deane in dissent concluded that the clause should be read down: the whole of section 44 (i) should apply ‘only to cases where the relevant status, rights or privileges [of foreign citizenship] have been sought, accepted, asserted or acquiesced in by the person concerned.’
Justice Mary Gaudron, also in dissent, stated that the constitutional rights of Australians should not be determined by foreign law: ‘every consideration of public policy and common sense tells against the automatic recognition and application of foreign law as the sole determinant’ of such rights. What if, Justice Deane hypothesised, a foreign power decided to ‘disqualify the whole of the Australian Parliament by unilaterally conferring upon all of its members the rights and privileges of a citizen of that nation’? There must be limits, in other words, in treating unintended or unwanted foreign citizenship as genuine foreign allegiance.
The High Court of Australia is set to consider these questions regarding citizenship, allegiance and eligibility by the end of the year, but the broader debates around loyalty, dual citizenship and membership are certain to continue.
Many countries (including Britain, Canada, New Zealand, the USA) with common origins and legal systems to those of Australia do not, or no longer, prohibit dual nationals from serving in their national legislatures. The only way unequivocally for Australia to join such a group of nations is constitutional amendment following section 128 of the Constitution. Amendment requires, first, an Act of parliament, then a national referendum on the proposal, resulting in a majority of votes in favour across the nation, plus a majority in a majority of the (six) states. This is notoriously difficult. Only eight proposals out of a total of 44 have been successful, the last in 1977. Further, an amendment to s 44(i) is unlikely to be high on the agenda of the present Parliament in light of current debate centred on issues such as Indigenous constitutional recognition, whether Australia should become a republic, or (the non-constitutional) recognition of same-sex marriage.
For individual dual nationals, effectively renouncing foreign citizenship in order to stand as a parliamentary candidate, will, it seems, continue to be one of the necessary sacrifices required of those who seek, or even merely attempt, to serve as a representative in the Australian Parliament.
SUGGESTED CITATION: Elisa Arcioni and Helen Irving, ‘Dual citizenship and eligibility to serve as a member of Parliament – the evolving story in Australia’, Constitutional Critique, (Constitutional Reform Unit Blog, University of Sydney, http://blogs.usyd.edu.au/cru/).
Elisa Arcioni is Senior Lecturer in The University of Sydney Law School.
Helen Irving is Professor of Law in The University of Sydney Law School

The following blog has been posted by Cassidy O’Sullivan, a CRU intern:
Despite all indications pointing to Queen Elizabeth II’s ongoing good health, media coverage over the last twelve months about her wellbeing has reached fever pitch. This is best exemplified by the scores of publications across the UK and Australia that have recently delved into so-called ‘secret plans’ for the days immediately following the Queen’s death. There is evident public fascination with how events will unfold after the Queen passes away. The Queen recently turned 91, and the last British monarch to die was King George VI (the Queen’s father) in February 1952 – over 65 years ago, and well beyond living memory of the vast majority of the public. Accordingly, there is some uncertainty about how Australia will collectively respond to the death of the Queen.
This blog post will attempt to fill some gaps by examining how Australia has publicly expressed its grief after the death of the last three British monarchs: King Edward VII in 1910, King George V in 1936, and King George VI in 1952. A survey of archived government gazettes and newspapers from across Australia reveals many common threads in how Australia conveyed its sorrow at the passing of each monarch, and provides a helpful framework for examining how these public rituals might manifest in the 21st century. More recent public bereavement after the deaths of Princess Diana in 1997 and the Queen Mother in 2002 provide further guidance.
The Public Response
Newspapers reveal that the death of the Sovereign produces unparalleled disruption across Australia. The British Foreign Office usually immediately cables the news to British embassies in all foreign capitals. After news of the death of each King began to filter through to the Australian people, public events and entertainment were spontaneously abandoned en masse.
When King Edward VII died on Friday, 6 May 1910, the news only reached Australia on Saturday morning. Thousands of Australians, who had been on their way to Saturday morning sports matches, matinees and other weekend activities, stopped in their tracks.
Upon King George V’s death in 1936, businesses and offices were suddenly shuttered across the nation; church bells tolled; and trams, trains and motor vehicles came to a standstill. A local NSW newspaper, the Braidwood Dispatch and Mining Journal, described the scene thus: “on the pavements people with bare heads and solemn faces stood in reverent remembrance of a King who had the love of a great Empire”.
Flags and British colours on warships in ports were lowered to half-mast, and courts adjourned as a mark of respect. In 1952, the Stock Exchange closed at noon on 7 February, the day after King George VI’s death. Patrons at cinemas in 1952 stood to sing ‘God Save the Queen’ upon hearing the news.
One common manifestation of public grief occurred through the draping of public buildings, hotels and churches with black material, or as the Prahran Telegraph described it in 1910, “the outward trappings of woe”. Purple or mauve, the official colour of Royal mourning, was another commonly used colour. Portraits of the late King would frequently be displayed in shop windows, surrounded by purple silk and black or mauve crepe paper. A portrait of the new King or Queen would often be displayed alongside their predecessor.
Churches, schools and local RSLs in cities and country towns alike held memorial services. In 1936, an evening memorial service in the Domain commemorating the life of King George V attracted 35,000 people. Dawn services at RSLs often featured the Last Post, followed by a period of solemn silence, and wreaths were typically laid upon Cenotaphs by local RSL members and Women’s Auxiliaries. Parliament House also held a large memorial service several weeks after King George VI’s death in 1952.
The Official Response
The public is officially notified of the death of the Sovereign by notices placed in the Commonwealth Government Gazette on the following day by the Prime Minister. The Gazette contains detailed directions to public officials setting out mourning rituals, and fixes the dates which will be observed as periods of ‘full mourning’ and ‘half mourning’, as well as a date for the discontinuation of public mourning.
Upon King George V’s death, the Governor-General directed through the Gazette that guns be fired at 3pm for 70 minutes, that flags and colours on ships in harbour be hoisted at half-mast until sunset on the day of the funeral (but hoisted to full mast on the day of proclamation of the new monarch), and church bells be tolled for one hour each day until the Royal funeral. Further, the Gazettes generally directed uniformed officers to wear black crepe armbands on their left arm, and asked that troops’ drums be covered by black, and black crepe be hung from tops of colour staffs of Infantry and from standard staffs and trumpets of Cavalry. It was also directed that the King desired that the public should wear suitable mourning attire.
The Gazettes additionally provided that a nationwide day of mourning would be held on the day of the monarch’s funeral. The exception to this was in 1936, where a telegram from London led to a new notice in the Gazette revoking the previous direction that 23 January, the day of King George V’s funeral, be observed as a public holiday, given that much of the world was still in the throes of the Great Depression. Instead, the public was asked to observe two minutes’ silence at midday.
Upon the death of the Sovereign, Parliament is usually convened briefly, and a motion is carried by both Houses expressing sympathy at the loss of the Sovereign, and reaffirming loyalty and allegiance to the new Sovereign. The message is then relayed to the new Sovereign by the Governor-General. In 1952, however, the King’s death was announced to the House of Representatives whilst it was in session by Prime Minister Robert Menzies. The Canberra Times reported that Menzies adjourned the House for 15 minutes to obtain official confirmation, and then addressed the room with a “breaking voice” before adjourning the House until the following day.
State Parliaments and local councils typically pass resolutions conveying their sympathies, and send telegrams to the Governor-General or their respective state Governors for transmission to the new King or Queen. The Australian Commonwealth, the States and major cities also send wreaths to be placed on the late Sovereign’s coffin. The Governor-General and the Prime Minister notify the public of their receipt of grateful responses from the Royal Family.
Gradual Transitions
Many other more prosaic transitions occur in Australia after the death of a monarch. New currency is minted (which took 16 months after King George VI’s accession, and 6 months after the Queen’s accession), and the Postmaster-General issues new postage stamps. Upon the Queen’s accession, government stationery was altered to bear the words ‘On Her Majesty’s Service’. Judges, magistrates and legal practitioners began to swear allegiance to Her Majesty, and King’s Counsel became known as Queen’s Counsel.
Public Grief in the 21st Century: Some Predictions
The world today is vastly different to the world in 1952, when the Queen ascended the throne. The British Empire has shrunk significantly, with many countries that were formerly under the Crown declaring independence during Her Majesty’s reign. The death of the Queen is more likely to become publicly known through twitter than government sources.
If history is any guide, Australia will cope with its sense of bereavement at the passing of the Queen by seeking comfort and guidance from traditional rituals of respect, deeply rooted in our past. Official ceremony and rituals will likely remain, in the form of Australian memorial services, public statements from Australian government officials, and the placing of condolence books in state Government Houses and in the Governor-General’s residence at Yarralumla for the public to sign, as occurred after the Queen Mother’s death in 2002.
We can undoubtedly expect social media, television and other instantaneous forms of communication to play a key role in expressions of public grief, alongside some of the more conventional displays of mourning. It is almost certain that billions of people will watch the Queen’s funeral on television. Viewership estimates reveal the extent of the public’s fascination with the Royal Family. It is estimated that over 2.5 billion people around the globe viewed Princess Diana’s funeral in 1997, whilst 2 billion watched the televised 2011 wedding of Prince William and the Duchess of Cambridge. Electronic versions of condolence books were made available to the public even in 2002 for the Queen Mother’s death through the Governor-General’s website.
Given the rise of Republican movements in Australia over the last decades, culminating in the unsuccessful republic referendum of 1999, only time will tell whether the Queen’s death, and Prince Charles’ ascendancy to the throne, will strengthen or weaken the desire of the Australian public to remain a Realm within the Commonwealth of Nations. The death of the Queen, however, will be regarded as a historical watershed and the end of an era.
SUGGESTED CITATION: Cassidy O’Sullivan, ‘Antipodean Expressions of Grief: How will Australia respond to the death of the Queen?’, Constitutional Critique, 25 May 2017, (Constitutional Reform Unit Blog, University of Sydney, http://blogs.usyd.edu.au/cru/).

CRU intern, TIMOTHY SMARTT, has contributed the following blog post:
Senator Jacqui Lambie’s proposal to introduce legislation providing for the forced rehabilitation of drug addicts has stimulated a great deal of public debate. The tentative proposal is for legislation that would allow parents of ice-addicted children (including those aged above 18) to arrange for the Commonwealth government to involuntarily detain and detox their children. While the focus has been on the desirability of such legislation, a preliminary question arises as to whether it would be constitutionally valid. This blog post considers the constitutionality of the proposal and its prospects of surviving a High Court challenge. While recognising the unreliability attending predictions of this nature, I guardedly conclude that the proposed legislation could be written so as to survive a challenge before the High Court.
Does the Commonwealth Parliament have the power to pass the legislation?
All Commonwealth legislation must fall within the scope of the Commonwealth’s legislative power prescribed by the Constitution. Since the legislation can only realistically fall within the Commonwealth’s power to legislate with respect to ‘external affairs’, this post will restrict itself to analysing the legislation’s connection to this power.
The external affairs power empowers the Commonwealth Parliament to enact legislation that implements treaties to which Australia is party. For present purposes, the treaty most conducive to validity is the Single Convention on Narcotic Drugs of 1961 (‘the Treaty’), a multilateral treaty with 185 parties and to which Australia became party in 1972. On the strength of current High Court jurisprudence, the legislation would likely have to satisfy three tests to be supported by the external affairs power.
First, the legislation must be capable of being reasonably considered as appropriate and adapted to implementing the Treaty: Victoria v Commonwealth (1996) 187 CLR 416, 487 (Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ). Naturally, that inquiry requires regard to the obligations imposed by the Treaty. Article 4 imposes a general obligation on parties with respect to the control of narcotics. It provides:

The parties shall take such legislative and administrative measures as may be necessary:
(a) To give effect to and carry out the provisions of this Convention within their own territories

One relevant provision is Article 38, which stipulates that:

The Parties shall give special attention to and take all practicable measures for the prevention of abuse of drugs and for the early identification, treatment, education, after-care, rehabilitation and social reintegration of the persons involved and shall co-ordinate their efforts to those ends.

It seems that detaining individuals for the sole purpose of providing addiction treatment is capable of being reasonably considered as appropriate and adapted to rehabilitating drug abusers. While views could differ on the proposal’s effectiveness, any difference of opinion is immaterial to the legislation’s constitutionality, so long as the legislation is capable of being reasonably considered as directed at the goals in Article 38. And in view of the intuitive connection between involuntary detoxification and rehabilitation (and any empirical evidence the Commonwealth wishes to rely on), it seems that the proposed legislation could be written in a way that is so capable.
Secondly, the proposed legislation must implement Treaty obligations defined ‘with sufficient specificity to direct the general course taken by signatory states’: Victoria v Commonwealth (1996) 187 CLR 416, 486 (Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ). The Treaty does exactly that. Article 38 provides the goals for which signatories should strive, and Article 4 directs use of legislation to achieve these goals. Consequently, this obligation is significantly more specific than a number of treaty obligations under consideration in Victoria v Commonwealth, which did not mention legislation but were nevertheless found sufficiently specific to support provisions of the Industrial Relations Act 1998 (Cth).
Third, the Commonwealth must not have entered into the Treaty ‘merely as a means of conferring legislative power upon the Commonwealth Parliament’: Koowarta v Bjelke-Petersen (1982) 153 CLR 168, 260 (Brennan J). The Treaty is a multilateral convention with 185 parties, ratified by Australia in 1972, and is thus nothing like a sham bilateral Treaty designed to confer power on the Commonwealth.
As the jurisprudence currently stands, it therefore appears that the Commonwealth could show that the external affairs power supports the legislation. The next issue, then, is whether the Commonwealth could adequately respond to another likely argument of a challenger, which is that the legislation infringes the Constitution’s separation of powers.
Separation of powers
The Constitution’s structure contemplates a division between government branches: Chapter I assigns functions to the Parliament, Chapter II assigns functions to the Executive and Chapter III assigns functions to the Judicature. To maintain this separation, Parliament cannot vest any branch of government with a function that belongs exclusively to another branch. As held by Brennan, Deane and Dawson JJ in Chu Kheng Lim (1992), one of those functions is the ‘punitive’ detention of citizens, which is exclusively reserved to the judiciary. It would therefore be wise for the Commonwealth to show that the detention mandated by the proposed legislation is not ‘punitive’ (if the involuntary rehabilitation is to be ordered by a person or body other than a court).
It seems that the Commonwealth could succeed on this point. That is because the joint reasons of the aforementioned judges in Chu Kheng Lim explicitly identify ‘detention in cases of mental illness’ as an example of ‘non-punitive’ detention that the executive can order. Moreover, it appears that there is a sufficient similarity between severe addiction to hard drugs and psychotic disorders that are classically regarded as meriting detention for the protection of the sufferer and the community. Both involve psychological states that sever the connection between the sufferer and reality. Both involve the possibility of maladaptive behavior that can seriously injure the sufferer. And both involve the possibility of violence perpetrated against other members of the community. Thus, so long as the proposed legislation targets addiction with a sufficient level of analogy to severe psychotic illness, there is a strong argument for the detention’s classification as ‘non-punitive’.
Conclusion
For the preceding reasons, it appears at this inchoate stage of the proposed legislation’s life that it could be drafted to avoid constitutional invalidity. The ultimate outcome will depend very much on the specific provisions of the legislation. But considering Senator Lambie’s idea at a high level of abstraction, this post takes the position that the proposed legislation is probably constitutional and could therefore withstand a challenge.
SUGGESTED CITATION: Timothy Smartt, ‘The Constitutionality of Senator Lambie’s Proposed Involuntary Detox Laws’ Constitutional Critique, 2 May 2016 (Constitutional Reform Unit Blog, University of Sydney, http://blogs.usyd.edu.au/cru/).

This post has been contributed by CRU intern, ARMEN AGHAZARIAN:
Introduction
The debate upon Indigenous Constitutional Recognition has again raised the issue of whether there should be seats reserved for Indigenous Australians in the Commonwealth Parliament. This blog post considers the constitutional issues concerning the legislative implementation of such a proposal in relation to the House of Representatives and the Senate.
Two principles guided the formation of the Commonwealth of Australia – federalism and responsible government. The Senate was envisaged as a House that represented the States, while the House of Representatives was intended to represent the people, making government responsible and accountable through elections. Neither form of representation accommodated the Aboriginal nations that had existed in Australia long before federation. The rejection of the doctrine of terra nullius must cause us to think again about how representative our parliamentary bodies truly are. If we are to have a national government that governs for both the Australia formed in 1901 and the Australia that has existed since time immemorial, a Parliament representative of both societies is required. What remains a pervasive issue in terms of justice for Indigenous Australians is thus ensuring a Parliament that has a minimum number of Indigenous representatives elected by and for Indigenous Australians.
Current representation
To say that our current arrangements have proven unsatisfactory in achieving this would be an understatement. It is true that some significant strides have been made in recent years in terms of Indigenous representation. In 2010, Ken Wyatt became the first Indigenous Member of the lower house, and recently became the first Indigenous frontbencher. There have so far been four Senators who identify as Aboriginal. However, none of these Senators can be considered as formally representing the collective will and mandate of a substantial portion of the Aboriginal and Torres Strait Islander community.
The Division of Hasluck has an Indigenous population of 2.5% (2011 Census) which means its Member, Ken Wyatt, is accountable to an overwhelming non-Indigenous majority. While the three Senators have broader State-wide electorates, they are still elected on party platforms and represent a majority of non-Indigenous electors (even in the case of the Northern Territory). The issue of Indigenous representation is not only about ensuring that individual Indigenous voices are heard in Parliament, but also about ensuring that there are Indigenous Members that are accountable to a majority of Indigenous electors.
Reserved seats in the House of Representatives
There are numerous avenues for correcting the under-representation of Indigenous Australians in Parliament. In the case of the lower house, there would be, however, considerable difficulties under our current constitutional arrangements if this were sought to be achieved by legislation alone. Electorates cannot cross state boundaries. The constitutionality of non-geographic (sometimes called “functional”) lower house divisions is also dubious. This means we cannot have a system of large Indigenous electorates interposed against non-Indigenous electorates as in New Zealand.
Furthermore, the geographic dispersion of Indigenous Australians makes it difficult to create any division outside of the Northern Territory with an Indigenous majority. Even if it were possible, it would still be the case that substantive representation would not be achieved, with one Indigenous representative for a relatively small section of the community. The reality is that true Indigenous representation in the House of Government along the lines of the New Zealand is likely to be achieved only with a constitutional amendment.
Reserved seats in the Senate
There are greater opportunities, however, for a system of reserved Indigenous seats in the Senate, although their constitutionality is not clear-cut. One possible approach would be to establish separate Indigenous and non-Indigenous electorates for the Senate in each state. Each electorate would cover the entirety of the state, and Indigenous Australians would have a choice of being on the general or Indigenous electoral roll. This is essentially the system that currently operates in New Zealand.
Section 7 of the Commonwealth Constitution provides that:

The Senate shall be composed of senators for each State, directly chosen by the people of the State, voting, until the Parliament otherwise provides, as one electorate.

The Commonwealth Parliament therefore has the power to provide that in each State there be two different electorates – one for Indigenous electors and another for non-Indigenous electors – covering the same geographical areas. The constitutional problem, however, would be whether this would produce a Senate “directly chosen by the people”.
The High Court held in A-G (Commonwealth); Ex Rel McKinlay v Commonwealth in 1975 that “directly chosen by the people” does not require an equality of numbers across electorates. Nonetheless, it did accept that the Constitution imposes a system of representative democracy and that while this is descriptive of a spectrum of choices, the spectrum has finite limits. The question is whether the division of each State into Indigenous and non-Indigenous electorates for Senate elections would fall off the end of the acceptable spectrum.
Representative democracy and “chosen by the people”
In the ordinary course, six Senators are elected for each State at every half-Senate election, taking office on the following 1 July. If one of those Senators were elected by the Indigenous electorate and five by the non-Indigenous electorate, that would mean that as little as 2% of the electors in a state would in most cases elect more than 16% of the Senators.
The principle of “one vote, one value” has never, however, applied to the Senate. The value of a vote of a Tasmanian is proportionately greater than that of a Victorian in achieving representation in the Senate, due to each State having equal numbers of Senators regardless of population.
The Senate has also historically been subject to political malapportionment. In the early 20th century, the voting system resulted in the winning political party unduly dominating the Senate. In 1914, for example, the Australian Labor Party won 86% of the Senate seats in the half-Senate election with only 52% of the popular vote and in 1917 the Nationalist Party won 100% of seats at the election, with 55% of the popular vote (http://elections.uwa.edu.au). The extreme nature of the results led to the introduction of proportionate representation, resulting in a more politically representative Senate.
In McKinlay and later, McGinty v Western Australia, the issue concerned geographic malapportionment, with rural electorates obtaining greater representation than they would on a population basis. While the High Court did not accept that there was a constitutional requirement of “one vote, one value”, the Justices recognised that there were limits to the amount of malapportionment that would be permissible. The question here is whether reserved Indigenous representation in each state would result in malapportionment to the extent that the Senate could not be said to have been “chosen by the people.”
The approach of McHugh J in McGinty was to ask whether a limitation on Parliament’s power to determine boundaries, divisions and voting systems was “necessary” to preserve representative democracy. That is, if the drawing of Indigenous electorates with a large voting share were to be repugnant to some necessary component of representative democracy, it would be unconstitutional. In McKinlay, McTiernan and Jacobs JJ both noted that “the people” have to be regarded “collectively as a unity.” Can “the people” be constituted of separate and distinct communities? On a strict reading of their dictum, the answer would be no. On the other hand, Stephen J also commented in McKinlay that “it is quite apparent that representative democracy is descriptive of a whole spectrum of political institutions, each differing in countless respects yet answering that same generic description.” Could it be said that there are enough international examples such that a system where Indigenous peoples vote as an electorate could be considered a part of representative democracy?
These are the questions that really need to be asked if the prospect of Indigenous seats were ever close to becoming a reality, but the strong precedent for Indigenous seats across the world suggests that Indigenous seats would fit into that spectrum of representative democracies identified by Stephen J. The strong deference given by the High Court towards Parliament in McGinty and McKinlay with respect to determining the electoral system, provided that representative democracy is preserved, indicates some promise for the prospect of Indigenous Senate seats.
Finally, the High Court in Roach v Electoral Commissioner and Rowe v Electoral Commissioner has identified an evolutionary aspect to representative government, which is progressing towards the maximisation of participation by the people in elections. The question would then be whether the reduction in proportionate voting power and representation of one sector of the people, in favour of the increase in proportionate voting power and representation of another sector of the people, would be consistent with this evolutionary approach towards the development of representative government. The High Court in Roach and Rowe only addressed participation, not voting power and representation, but its evolutionary theory might be extended into this area if a legislative proposal for reserved Indigenous Senate seats were implemented.
Conclusion
The establishment of reserved Indigenous seats is about giving our first nations the ability to express their collective will in Parliament. The Constitution, however, presents some real difficulties in this regard, largely due to the uncertainty regarding the meaning of “chosen by the people” and whether the Parliament can justifiably draw non-geographic divisions, increasing and decreasing the proportionate representation of sectors of “the people”. The uncertainty is exacerbated by the fact that the power of Parliament to draw Senate divisions has never been exercised, with every state still voting as one electorate.
While Roach and Rowe brought new restrictions on Parliament’s ability to restrict voting rights, they did not address restrictions on Parliament’s power to determine the make-up of electorates. McGinty and McKinlay thus still hold true with regard to malapportionment, and suggest the High Court will give strong deference to Parliament in setting up the voting method and the drawing of divisions. Only if what Parliament does is repugnant to representative democracy will it be unconstitutional. However, if anything has been shown by the election cases, it’s that representative democracy is a very flexible concept. Given international precedent for reserved Indigenous and minority seats in many robust democracies, such as the New Zealand, India and Norway, it’s hard to say reserved Indigenous seats would in any way diminish representative democracy.
SUGGESTED CITATION: Armen Aghazarian, ‘Reserved Indigenous Seats in the Commonwealth Parliament: Potential Models and Constitutional Issues’ Constitutional Critique, 14 December 2015 (Constitutional Reform Unit Blog, University of Sydney, http://blogs.usyd.edu.au/cru/).

Almost every history book contains factual errors. These can usually be corrected in later histories or pointed out in reviews. But errors that are repeated over time become difficult to shake. They transform into myths. Myths may be relied upon to support arguments for political or legal reform. Proponents of reform may, unwittingly, expose themselves to scepticism about the soundness of their proposal once the errors are identified. The force of their argument may be diluted. Erstwhile or potential supporters may conclude that there is no need for reform.
The place of Australia’s Indigenous people in the Constitution abounds with myths. Many have been repeated in the current discussion about Indigenous constitutional recognition. It is in everyone’s interest that these should be explained. This has no bearing on whether or not particular proposals for constitutional change are worthy.
Below, I identify the commonly-repeated myths, and explain the relevant facts. First, a few words about what the Constitution does not say:
THE CONSTITUTION
The Australian Constitution makes no mention of Aboriginal and Torres Strait Islanders. Prior to 1967, it referred to the people of the “Aboriginal race” (but not the Torres Strait Islanders) in two separate sections. These sections said nothing about the identity of the Aboriginal people or the definition of “Aboriginal”, or about Aboriginal citizenship or rights. The Constitution has never described or defined Aboriginal people. It has never referred to the doctrine of “terra nullius.”
THE MYTHS
The 1967 referendum
The 1967 referendum has become iconic and inspirational for proponents of indigenous constitutional recognition. It is, however, poorly understood.
The question put to the voters in the 1967 referendum was: Do you approve the proposed law for the alteration of the Constitution entitled: “An Act to alter the Constitution so as to omit certain words relating to the people of the Aboriginal race in any state and so that Aboriginals are to be counted in reckoning the population?”
More than 90% of the nation and a majority in all States said Yes. As a result, two changes were made to the Constitution.
1. Certain words were omitted
The “certain words” that were omitted were from section 51 (xxvi). Prior to 1967, this section gave the Commonwealth the power to make laws with respect to “[t]he people of any race, other than the aboriginal race in any State, for whom it is deemed necessary to make special laws”. This meant that the Commonwealth could not make special laws for the Aboriginal people, except in the Territories. Aborigines were a subject for State laws.
In 1967 the words “other than the aboriginal people in any State” were struck out. As a consequence, the Commonwealth gained the power to make special laws for the Aboriginal people (Native Title laws are an example).
The Constitution, it should be noted, refers only to “special laws”. It is neutral regarding the content of such laws. It does not say anything about whether those laws must be beneficial or adverse.
2. Aboriginals are to be counted
Secondly, following the 1967 referendum, section 127 of the Constitution was removed. This section said: In reckoning the numbers of the people of the Commonwealth, or of a State or other part of the Commonwealth, aboriginal natives shall not be counted.
It is a common myth that the section excluded Aboriginal people from being counted in the census, and that the 1967 referendum meant that they would henceforth be counted. It did not. The Aboriginal people have always been counted, from the very first Commonwealth census in 1911. In fact, census statistics specifically recorded the populations of Aboriginal Australians. “Half-blood” Aborigines were considered to be white and were included in the general census.
The purpose of section 127 (admittedly, not obvious from its words) was to guide the calculation of the numbers of parliamentary representatives per State and also to determine certain State financial entitlements and obligations, based on State populations. When these calculations were made, the numbers of Aboriginal people, as counted, were excluded.
The right to vote
Another common myth is that the 1967 referendum gave the Aboriginal people the right to vote. This is incorrect. The 1967 referendum had nothing to do with this right (or “equal rights” or rights at all).
Aboriginal people were able to vote in all States and in the Commonwealth by 1967. From 1949 they could vote in Commonwealth elections if they were enrolled to vote in NSW, Victoria, South Australia or Tasmania. Indigenous people who had been in military service also had the right to vote. In 1962, all other Aboriginal people became entitled to vote in Commonwealth elections.
At the State level, Aboriginal people were able to vote in South Australia, NSW, Tasmania and Victoria throughout the 20th century. In Western Australia and Queensland they gained the State vote, respectively, in 1962 and 1965.
It should also be noted that the official definition of Aboriginal has changed over time, and voting rights of individuals have therefore changed accordingly. Many Aboriginal people today would not have been excluded from the right to vote under the former laws.
In any case (with the exception of a now-spent transitional provision – section 41), neither eligibility to vote nor the franchise is mentioned in the Constitution. The right to vote is a matter for ordinary legislation. The Constitution did not need to be altered for Aboriginal people to gain the right to vote.
Citizenship
A further common myth is that the 1967 referendum gave citizenship to the Aboriginal people. This is incorrect. Between 1788 and 1949, everyone born in Australia (or any other part of the British Empire) acquired the legal status of “British subject” (“subject” was the term used for British nationality at that time). In 1949, under new legislation every person born in Australia, regardless of race or colour, became simultaneously a British subject and Australian citizen. Subsequent changes in legislation meant that Australians are no longer British subjects.
Eligibility for Australian citizenship has changed over the years. Citizenship laws, however, have never differentiated between Aboriginal and non-Aboriginal persons.
Again, citizenship is not defined in the Constitution. A referendum would not be required to amend the citizenship law.
“Flora and fauna”
The myth that the Constitution included a reference to the Aboriginal people under a “flora and fauna” section is entirely erroneous. The words “flora and fauna” do not appear anywhere in the Constitution, nor did they prior to 1967. There was no “Flora and Fauna Act” either. No legislation referred to or classified the Aboriginal people in such terms.
White Australia
It is sometimes thought that the “White Australia” policy was enshrined in the Constitution and/or directed at Aboriginal people. It was not. It is certainly true that Australian attitudes and policy favoured “white” people generally and, in many respects, discriminated against non-whites on the basis of their race or colour.
However, the White Australia policy was specifically about immigration, and not about the Indigenous people. The Commonwealth has power to pass laws with respect to immigration (section 51 (xxvii) ), but immigration policy is not mentioned in the Constitution. It was expressed in legal terms in the Commonwealth Immigration Restriction Act of 1901. Under this Act, an intending immigrant could be denied entry into Australia if he or she failed a “dictation test”. The test involved writing down 50 words that were dictated by an immigration officer, in any European language. If a person could not write as dictated, he or she was refused entry. The test was mostly applied to Asian persons. It did not apply to people living in Australia, whether white or non-white.
It is also frequent asserted that the Immigration Restriction Act was the Commonwealth Parliament’s very first Act. This is incorrect. It was the seventeenth Act of 1901 – the last Act of that year.
Indigenous recognition
None of these myths is essential to the argument for indigenous recognition. Today, Indigenous Australians have equal legal status with non-Indigenous Australians, but no one can claim that they have gained full equality or recognition in other terms. The fact that Australia had a native population prior to the arrival of the British in 1788 is still not recognized in the Constitution.
The Commonwealth’s Aboriginal and Torres Strait Islander Peoples Recognition Act, passed in 2013, recognized that “The Aboriginal and Torres Strait Islander peoples were the first inhabitants of Australia.” The Act was designed to be preparatory to a referendum on Indigenous constitutional recognition and has a two-year “sunset” clause. The referendum date has not yet been set. However, Prime Minister Abbott has indicated that 27 May 2017 – the fiftieth anniversary of the 1967 referendum – may be chosen.
If so, it will be an opportunity for clarifying what really happened in that event, and for arguing for Indigenous recognition in its own right.
For further information on myths about the 1967 referendum, see http://parlinfo.aph.gov.au/parlInfo/download/library/prspub/JTZM6/upload_binary/jtzm62.pdf

The following post is by CRU Intern, SARAH BRADBURY
On 3 February 2015, Geoffrey Nettle was sworn in as the 51st Justice of the High Court of Australia. His Honour is the oldest person to be appointed to the Court. Aged 64 and 2 months, Justice Nettle will be required to retire in December 2020 after serving for only 5 years and 10 months, one of the shortest tenures in the history of the Court. This is owing to section 72 of the Constitution, which provides for the mandatory retirement of High Court Justices at age 70.
This post will address whether this mandatory age is still appropriate almost 40 years after its insertion into the Constitution, and evaluate possible alternatives that would ensure the retention of good judicial minds.
Constitution Alteration (Retirement of Judges) 1977
Prior to 1977, judges elected to the High Court were granted life tenure. This was affirmed by the High Court in Waterside Workers’ Federation of Australia v J W Alexander Ltd (1918) 25 CLR 434, in which the Court interpreted the original text of section 72 as requiring that every Justice of the High Court be appointed for life subject only to the power of removal for proved misbehaviour or incapacity. Even in those circumstances, removal of a High Court judge was only possible after an address from both Houses of Parliament in the same session “praying for such removal”.
This provision was altered by referendum in 1977. Approximately 80 per cent of electors approved an amendment to Chapter III of the Constitution providing for the mandatory retirement of federal judges at age 70. While High Court judges are guaranteed tenure until reaching this age, the Parliament may legislate to lower the age of retirement for other federal judges. This provision was used, for example, to require the retirement of Family Court judges at age 65 in section 4 of the Family Law Amendment Act 1977 (now repealed).
The Bills Digest prepared by the Parliamentary Library stated that the amendment was proposed because “[t]here has been a growing acceptance of the view that federal judges, like their counterparts in the States, should be subject to a maximum retiring age.” Supporters of the referendum argued that a mandatory age of retirement would help maintain vigorous and dynamic courts by bringing fresh ideas to the bench, and that it would prevent the embarrassing situation of removing a judge who is unable to continue performing his or her duties, but who is unwilling to resign. However, while mandatory retirement at age 70 may have been appealing in 1977, it can be seen as arbitrary in contemporary society.
The Need for Change
In the 38 years since the mandatory retirement age was implemented, the demographic makeup of the Australian workforce has changed significantly. According to the Australian Bureau of Statistics, the average life expectancy of males in 1977 (then the only gender appointed to the High Court) was 69.6. In 2013, that had increased to 80.1 for males and 84.3 for females. This longer life expectancy is reflected in how many years people remain in the workforce. While in the 1970s only 8.3 per cent of persons aged over 65 were working, in 2010 this had increased to 13.5 per cent and it is projected that in 2050 22.7 per cent of people will remain in the workforce past that age. Professor George Williams has argued that “as the population ages, and people continue to serve with distinction in a number of fields, there is less reason to force High Court justices into early retirement.”
It is widely recognised that judges are still able to perform legal duties to a high standard beyond age 70. For example, Dyson Heydon following his retirement in 2013 was appointed the sole Royal Commissioner to lead the Royal Commission into trade union governance and corruption. Further, there is a trend of judges serving in other jurisdictions following their retirement. Murray Gleeson and Michael McHugh took up appointments on the Court of Final Appeal in Hong Kong, Sir Gerard Brennan and John Toohey served on the Supreme Court of Fiji, and Ian Callinan was an ad hoc Judge of the International Court of Justice in the East Timor v Australia provisional measures hearing. Indeed, Sir Anthony Mason is still sitting on the Court of Final Appeal in Hong Kong at age 90. Against this background, it is evident that many High Court judges retain the necessary physical and intellectual strength after attaining age 70 to perform judicial duties to a high standard. Requiring retirement at this age, as argued by Professor Andrew Leigh, has the consequence of forcing some judges to retire when they are at their peak.
The strongest argument in favour of keeping the mandatory retirement age is that it ensures judges who are unable to adequately perform their judicial functions are precluded from sitting. Ensuring that judges retain a high mental capacity is important. For example, when Dr H V Evatt served as Chief Justice of the New South Wales Supreme Court this was of particular concern because, as stated by Michael Kirby, “his deteriorating mental powers… were all too evident.” Having judges hearing matters when they are no longer able to handle the complexities of legal work is problematic. Sir Anthony Mason has stated, “[w]hen the judge lacks professional skills of a high order, the costs of a lengthy trial may be wasted.” Accordingly, to maintain public confidence in the judiciary, it is necessary to ensure there are safeguards so that only those fit to hold office continue to do so.
But how is this balance best achieved? To explore this question, this post will now examine possible reforms to section 72.
Acting Judges in the High Court
The position of Reserve or Acting Judge is common in state judiciaries, and allows for persons to be appointed to act as a Judge to assist with the business of the Court as required. While retirement ages are still common in these jurisdictions, age 72 in New South Wales and 75 in Victoria, it allows for greater flexibility in the removal of judges after they have reached the retirement age. An Acting Judge is typically appointed for a short term which may be renewed, and aims to overcome temporary difficulties in the administration of the Court.
It is unlikely that such a position would be a valid appointment under Chapter III of the Constitution as it currently exists. In Capital TV and Appliances Pty Ltd v Falconer (1971) 125 CLR 591, Windeyer J emphasised that it is a requirement of section 72 that judges be granted tenure terminable only for misbehaviour in office or incapacity.
Critically, tenure is entrenched in the Constitution to ensure the minimum requirements of judicial independence and impartiality are satisfied. This arguably could be compromised if a judge’s performance was subject to executive scrutiny. As Chief Justice Gleeson stated, “the duty of a judge is to administer justice according to the law, without fear or favour, and without regard to the wishes or policy of the executive government.” Michael Kirby has argued that the existence of acting judicial offices may give rise to concerns that “a judge has tailored his or her decision to avoid government displeasure.” Further, Sir Anthony Mason has stated that appointing acting judges for reasons other than overcoming temporary difficulties is “extremely difficult to support”.
However, when the validity of acting judicial offices came under challenge in Forge v Australian Securities and Investments Commission (2006) 228 CLR 45, a majority of the High Court considered these appointments insufficient to undermine judicial independence such as to deprive a court of its position as a State Supreme Court invested with federal jurisdiction. In particular, Chief Justice Gleeson emphasised that the standards of judicial independence “are not developed in a vacuum” – they must be considered in light of “history, and of the exigencies of government”. His Honour observed that the position of many permanent judges could raise questions of “at least as much significance”, specifically in circumstances concerning judicial promotion. Those members seeking to advance their judicial rank could similarly be seen as wanting to keep the Executive on-side, however no criticisms concerning lack of impartiality are directed at those members of the judiciary. In comparison, the attraction for a judge over the age of 70 to remain as an acting judge for another year is unlikely to be significant enough to be a real threat to judicial independence and impartiality.
Increasing or Removing the Mandatory Retirement Age
An alternative option would be to hold a referendum to increase the mandatory retirement age. A five year increase to 75 years would be an appropriate option, aligning the retirement age with changes to life expectancy and quality of life in Australian. A similar amendment to the Pennsylvania Constitution raising the retirement age of judges from 70 to 75 was approved by the Pennsylvania House of Representatives in February 2015, and is expected to be put to referendum later this year. However, a key disadvantage with this approach is that it will require reassessment and amendment in another 30 or 40 years to more adequately reflect working patterns in that time.
To avoid multiple referenda, it has been argued that Australia should abolish the retirement age altogether. This would bring Australia in line with the recommendations of the Organisation for Economic Co-operation Development, which encourages the abolition of compulsory retirement ages across all professions.
There is some support for the abolition of mandatory retirement of judges, as demonstrated in various submissions to the Australian Law Reform Commission’s “Grey Areas – Age Barriers to Work in Commonwealth Laws” Report. In particular, National Seniors Australia argue that the section 72 requirement is detrimental symbolically as it creates the perception that people only work competently until they are of a certain age.
However, because judicial decision making carries such important consequences it is necessary that judges be mentally competent and capable of performing those duties. The special nature of judicial work is even reflected in jurisdictions where mandatory retirement ages are illegal, such as New Zealand and Canada; specific exceptions are carved out for persons in the armed services, aviation, judicial and safety industries. It would be undesirable to remove the retirement age altogether, as this would increase the risk of having judges remain on the bench when their mental faculties are deteriorating. While the power to remove judges for “incapacity” may operate to protect against this risk, the extreme and embarrassing measure of requiring both Houses of Parliament to conclude that a judge is mentally incapable of performing his or her duties mean it is unlikely to be utilised.
Fixed Renewable Terms of Appointment
A prudent alternative would be to adopt a system of fixed-term appointments after reaching retirement age that are renewable by an impartial Judicial Commission. As these renewable terms would be inconsistent with the tenure requirement of section 72, this would require an amendment of the Constitution by referendum. This approach, advocated by Carl Ingram, is modelled on practices in Hawaii and Papua New Guinea. In those states, judicial officers are appointed for a 10 year term which can be renewed by a Judicial Commission comprising members of the Senate, the House, the Bar and the Judiciary. This seeks to ensure impartiality when determining whether to renew an appointment.
Ingram suggests this model can be adapted to address short-term appointments for older judicial officers appointed as expatriate judges, however it could similarly be adapted to address the question of judges remaining in office beyond attaining the age of retirement. Ingram proposes the implementation of “evergreen” contracts for 2 to 4 years that automatically renew unless a decision is made to the contrary by the relevant body. This approach gives a measure of security and independence to judicial officers while also addressing legitimate concerns about ageing judges.
The decision to retain or remove judges could be made by a body similar to the Judicial Commission of New South Wales, which, pursuant to the requirements of section 5 of the Judicial Officers Act 1986 (NSW), consists of members of the judiciary, including the Chief Justice, and laypersons with “high standing in the community”. A body so composed has an awareness of the capacity of the judge in question, and an understanding of the skills necessary to competently perform judicial functions. Further, it is well placed to assess the needs of the Court and therefore decide to retain judges with particular areas of expertise until a suitable replacement is available.
Conclusion
As the demographic makeup of the Australian workforce changes, the mandatory age for judicial retirement must change with it. This has been particularly highlighted by the recent appointment of Justice Geoffrey Nettle, who in his swearing-in speech admitted “any damage I may do now is limited”. There are substantive benefits to having a mandatory retirement age, and a complete removal of this provision would be undesirable. An amendment increasing the retirement age to 75 or alternatively the introduction of evergreen contracts are two possible solutions to the problem which deserve consideration.
SUGGESTED CITATION: Sarah Bradbury, ‘An Ageing Amendment – Section 72 and the Mandatory Retirement Age of Judges’ , Constitutional Critique, 28 May 2015, (Constitutional Reform Unit Blog, University of Sydney, http://blogs.usyd.edu.au/cru/).

The following post is by CRU Intern ELIZABETH JONES:
Since Federation, the method of voting in the Senate has been an area of debate and reform. This demonstrates a willingness of the Parliament to keep improving the Senate electoral system. The most recent reform occurred in 1984 when the current system of group ticket voting “above the line” and full preferential voting “below the line” was introduced to decrease a high informal vote and make the Senate ballot paper more user friendly. Is it time to consider Senate electoral reform again?
In Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, the High Court unanimously held that the principle of representative government could be implied from provisions of the Constitution, including section 7, which requires members of the Senate to be “directly chosen by the people”. Representative government requires electors to be given a free and informed choice. This post considers to what extent the current Senate voting system enables electors to adequately express a genuine choice and examines the constitutional implications of possible options for reform.
How well does the current Senate voting system reflect section 7 of the Constitution?
Under the current Senate voting system of proportional representation by single transferable vote, a candidate is elected after achieving a quota of votes. Preferences play an important part in the fulfillment of quotas. The Senate ballot paper presents electors with two options. Electors can vote above the line by marking “1” against a single party or group. Once a vote above the line is cast, the elector loses control over their preference flow as they automatically accept that party or group’s allocation of preferences. The preference flow is determined by group voting tickets lodged by parties. Alternatively, electors can vote below the line where they are required to express full preferences for all listed candidates.
The current voting system was upheld as constitutionally valid by Gibbs CJ when it came under challenge in McKenzie v Commonwealth (1984) 57 ALR 747. Gibbs CJ stated “while the Constitution requires electors at a Senate election to vote for individual candidates, it does not forbid the use of a system which enables electors to vote for individual candidates by reference to a group or ticket”. However, this case was a decision of a single judge and was decided before 1992, when the High Court first acknowledged the implied freedom of political communication and emphasised that electors in Commonwealth elections should be given a free and informed choice. Consequently, if the issue came before the High Court again it may be decided differently. Notwithstanding this, while the current Senate voting system has been upheld as constitutionally valid, the way this system plays out in practice raises concerns as to whether it is the best system to give effect to section 7 of the Constitution.
According to the Australian Electoral Commission, in the 2013 Federal Election, 96.5 per cent of electors voted above the line while only 3.5 per cent voted below the line, expressing full preferences for all of the candidates. This outcome is likely due to the onerous task electors face if they choose to vote below the line in the Senate, which in NSW required electors to rank 110 candidates. Consequently, the final composition of the Senate largely reflected the allocation of preferences determined by parties.
The automatic distribution of preferences by the party which the elector votes for above the line is not inherently problematic because it allows the elector to express that they approve of that party’s allocation of preferences. Electors generally expect that if the party or group for which they voted “1” above the line is unsuccessful their preferences will go to candidates of other parties which support similar issues.
However, recently there has been a trend of some micro parties “gaming” the system. Gaming occurs when micro parties allocate high preferences to each other, ahead of the larger parties, often when the parties have no similarities to each other. When exclusions of lower polling candidates create an aggregate transfer of preferences, there is a greater chance that a micro party candidate may be elected, based on transferred preferences. This has resulted in some unpredictable electoral outcomes, which greatly differ from the primary vote. The election of Ricky Muir from the Motor Enthusiasts Party to the Senate in the 2013 Federal Election is commonly cited as an unpredictable electoral outcome. The quota in Victoria was calculated at 483 076 of the votes. According to the Australian Electoral Commission, the Motor Enthusiasts Party only received 16 604 above the line ticket votes and Ricky Muir received 479 below the line first preference votes, which was only 0.51 per cent of formal first preference votes. Despite only receiving a small percentage of first preference votes, Muir was elected to the Senate for Victoria in the final vacancy. Muir received preference votes from a diverse group of parties and candidates including the Palmer United Party, the Democratic Labour Party, Family First, the Fishing and Lifestyle Party and the Shooters and Fishers Party. His successful election into the Senate was achieved due to a final transfer of 143 118 votes from the excluded Australian Sex Party. Ultimately, 94.3 per cent of the votes that led to Muir’s election were ticket votes for other parties on the ballot paper and allocated to Muir through preference harvesting.
The potential election of a candidate through an accumulation of votes from a collection of ideologically disparate parties is an unintended consequence of the group voting ticket system. While gaming of the system does not occur on a large scale, the way in which it can lead to electoral outcomes in the Senate, which may greatly differ from the intentions of many electors is significant. Further problems with the current system are evident in the burdensome task electors face if they choose to vote below the line. It is questionable whether electors are able to express an informed choice for the large number of candidates listed below the line.
Consequently, under the current Senate voting system electors may not be able to adequately express a genuine and informed choice irrespective of whether they vote above or below the line vote. Reform is required to bring Senate voting more in line with the notion of representative government inherent in section 7 of the Constitution. Section 9 of the Constitution provides Parliament with power to make laws prescribing the method of choosing Senators. In light of the problems with the current system, electoral reform should aim to improve how electors can better express their choice. This post will evaluate common proposals for Senate electoral reform.
Optional preferential voting above the line
The Joint Standing Committee on Electoral Matters in its report into Senate voting practices has recommended the adoption of optional preferential voting above the line. This would enable electors to mark “1” against a particular party with the option of numbering further boxes in sequential order if they wish. Under this system the order of candidates within the group would still be nominated by the group so that if an elector were to preference three boxes above the line in sequential order then their preferences would be distributed in the order of the candidates in those groups until the last numerical preference was allocated. If an elector only expresses one preference above the line, their preferences only extend to the candidates in that particular group.
This would take the power to control preference flows away from the parties and give it back to the electors, ensuring that electoral outcomes in the Senate better reflect the intentions of electors and reducing the likelihood of parties gaming the system. However, optional preferential voting above the line presents a risk of high rates of vote exhaustion. If an elector only preferences one group but that group has fewer candidates than there are Senate vacancies, the vote stays within that group and is exhausted.
Differing views about the extent to which vote exhaustion has an impact on an elector’s choice were expressed by members of the High Court in Langer v Commonwealth (1996) 134 ALR 400. The Langer case concerned the validity of section 329A of the Commonwealth Electoral Act 1918 (Cth) which provided that a person must not print, publish or distribute any matter or thing with the intention of encouraging persons voting in an election for the House of Representatives to fill in a ballot paper otherwise than in accordance with section 240, which provided full preferential voting for the House of Representatives. The enactment of section 329A was a response to a method of voting publicised by Albert Langer, which encouraged electors to vote 1,2,3,3,3… deliberately avoiding the allocation of preferences to unwanted candidates. The effect of section 270 of the Commonwealth Electoral Act 1918 (Cth) was that if this method of voting was adopted, only the first and second preferences would be counted.
The majority of the High Court upheld the validity of section 329A and rejected the plaintiff’s argument that section 329A was inconsistent with the constitutional requirement that members of the House of Representatives be “directly chosen by the people”. In upholding the validity of section 329A, the majority of the High Court expressed the view that the exclusion of votes inhibits an elector’s choice under section 24 of the Constitution. However, Dawson J in the minority held that section 329A was invalid. His Honour took the view that this method of voting reflected the electors’ choice even though their votes may potentially be excluded. Dawson J stated that:

[t]o prohibit communication of this fact (or at any rate communication in the form of encouragement) is to restrict the access of voters to information essential to the formation of the choice required by s 24 of the Constitution. Thus, s 329A has the intended effect of keeping from voters an alternative method of casting a formal vote which they are entitled to choose under the Act.

These different views provide insight into whether optional preferential voting above the line, with a high risk of vote exhaustion would be susceptible to challenge by the High Court. If this voting method were adopted it would be prudent to also introduce measures to reduce the likelihood of vote exhaustion. For example, ballot paper instructions could encourage electors to express more than one preference above the line, while still counting a single first preference as a formal vote. Alternatively, the risk of exhaustion could be limited by requiring that a party or group must be able to field the number of candidates for which there are vacancies to be listed above the line.
If measures were introduced to minimise the risk of vote exhaustion, optional preferential voting above the line presents a sensible option for Senate electoral reform as it would remove the ability for parties to “game” the system through preference deals ensuring that electoral outcomes reflect the intentions of electors.
Partial optional preferential voting below the line
The Committee also recommended partial optional preferential voting below the line, either in addition to, or independent of optional preferential voting above the line. Under this system rather than having to rank all of the candidates which appear below the line, electors would only have to rank as many candidates as there are Senate vacancies but could express more if desired. This would require electors to rank six in a half Senate election, 12 for a double dissolution and two for territories. Combined with optional preferential voting above the line, this option is useful as it would retain the control electors have when voting below the line while removing the onerous requirement of having to rank all of the candidates in sequential order.
Thresholds
Another proposal for Senate electoral reform is to maintain the current Senate voting system but introduce a minimum threshold of first preference votes, which would need to be polled before a group is eligible for election. Rather than being completely excluded, it is likely that the votes would be distributed to non-excluded candidates.
Thresholds have been included in international proportional representation systems. For example, Sweden has adopted a 4 per cent nationwide threshold under its party list proportional representation system, New Zealand has a 10 per cent nationwide threshold under a closed list proportional representation system and Israel has a 2 per cent threshold under its nationwide proportional representation system. Discussion of a threshold for Senate voting has focused on 4 per cent as this is the current threshold for groups and candidates to receive public funding under section 297 of the Commonwealth Electoral Act 1918 (Cth).
A threshold would remove the possibility of parties obtaining a seat in the Senate while only having received a small percentage of the primary vote and reward parties that have gained support by campaigning for votes. However, a major criticism is that a threshold quota is arbitrary and therefore vulnerable to criticism, particularly because thresholds benefit particular parties at the expense of others.
If introduced, it is likely a threshold quota would apply to groups not individual candidates because of the possibility that even in a major party, the second, third, or fourth candidates may fail to reach the threshold. However, does a threshold, which applies to groups, mean that electors are voting for groups not candidates? If the answer were yes then the system could be susceptible to constitutional challenge due to the statement by Gibbs CJ in McKenzie v Commonwealth that section 7 requires electors to vote for individual candidates.
It is also unclear whether a threshold would prevent parties from entering into strategic preference deals to “game” the system. While a threshold would restrict many micro parties from being eligible for election, many of the submissions to the Joint Standing Committee outlined that a threshold may simply shift the beneficiaries of preference harvesting from micro parties to other parties. Furthermore, while threshold quotas are used overseas, there is little precedent for introducing a threshold quota within a proportional representation system, which relies on a single transferable vote method. Group ticket voting is used outside Australia but mostly in combination with optional preferential voting. These issues illustrate that a threshold is not the most suitable option to resolve the current problems inherent in Senate voting.
Strengthening party registration requirements
Another reform option is to tighten the requirements for party registration to reduce the number of micro parties and the size of the ballot paper. The Joint Standing Committee on Electoral Matters recommended that the party membership should be increased from 500 members to 1500 members and that the Australian Electoral Commission should be required to validate each of these members. It also recommended that a separate membership requirement be established to register a federal party that can only run in a nominated state or territory. This could be based on either a population or electorate basis and would enable a party focused on specific state or territory issues to be established and participate in the election.
This proposal would most likely be constitutionally valid due to previous High Court decisions such as Mulholland v Australian Electoral Commission (2004) 220 CLR 181. However, while this option may deter front parties from being set up prior to an election, it does not directly address the problem of micro parties gaming the system. It’s also important to ensure that electoral reform does not decrease the diversity of candidates and political parties, which is an important feature in a democracy. Tightening party requirements has the potential to decrease the choice of the electorate. Better options for Senate electoral reform focus on improving how electors express their choice.
Conclusion
Ultimately, under the current Senate voting system electors are not able to adequately express a genuine and informed choice irrespective of whether they vote above or below the line vote. To ensure that the Senate voting system better reflects section 7 of the Constitution, electoral reform should focus on how electors can be helped to better express their choice. The most significant way to reduce the complexity of the current Senate voting system and to return the control of preferences to electors is through a system of optional preferential voting above the line in combination with a system of partial optional preferential voting below the line. This would reduce the current gaming of the system by micro parties and importantly ensure that electoral outcomes in the Senate reflect the intentions of electors.
SUGGESTED CITATION: Elizabeth Jones, ‘Go with the flow or room for improvement? To what extent does the Senate electoral system reflect s 7 of the Constitution?’ , Constitutional Critique, 28 May 2015, (Constitutional Reform Unit Blog, University of Sydney, http://blogs.usyd.edu.au/cru/).