Flat White

Section 44 solved in six easy steps

21 August 2017

2:49 PM

21 August 2017

2:49 PM

Malcolm Turnbull has a heck of a political problem on his hands. For once, it’s not entirely of his own making.

The extraordinary mass fallout from section 44 of the federal constitution, with seven (so far) senators and MPs being ensnared since July by the quaint words, ‘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’. Two Green senators, Scott Ludlum and Larissa Waters resigned, there’s disagreement over when One Nation senator Malcolm Roberts renounced his British citizenship, a cabinet minister, Matt Canavan, stepped aside, and the National party leader and deputy leader, Barnaby Joyce and Fiona Nash, are still ministers but are, respectively, a Kiwi and a Pom. Even king-maker Senator Nick Xenophon has been caught up in the mess, a British overseas citizen by descent.

And that doesn’t even count the Coalition MP and senator under a section 44 cloud for business arrangements that could constitute ‘an office of profit under the Crown’.

Confronting an escalating existential crisis last week, Turnbull and his government hadn’t a clue. While Canavan, a Senator, stood aside from cabinet while his eligibility as a senator is considered by the High Court, Turnbull failed to demonstrate why Joyce and Nash shouldn’t do likewise. Joyce’s plight threatens the Coalition’s shaky majority in the House of Representatives. Labor’s had a field day, refusing to recognise Joyce as a legitimate minister, and laughed as the government flailed helplessly, and Julie Bishop starting a diplomatic incident with New Zealand about the involvement of a Labour Kiwi MP in asking parliamentary questions on behalf of the ALP.

No wonder Newspoll’s needle finally shifted this week, but not in the direction the government wants. Same-sex marriage and now this have derailed any agenda the Turnbull government has, and the Nats are rechristened the Dual National party. With a raft of section 44 questions awaiting the High Court, our democracy is a mess, with doubts over the valid numbers in both houses questioning the legitimacy of close votes.

The Turnbull government is being strangled by impotence, indecision and panic. Something must be done to save the situation. Acting decisively to fix that relic of another age, the parliamentary disqualification fly-paper of section 44, surely that would be doing something?


Changing the constitution needs a referendum and that takes years, I hear you say. It can’t be done in no time flat. Can’t be done? Oh yes, it can: here’s Tezza’s Six Point Plan to have it sorted by Christmas.

Step 1: In the next parliamentary fortnight, the government introduces a referendum bill with a very simple question: Do you approve of a law to repeal section 44 of the Constitution and give the parliament power to make laws in relation to the qualifications of its members? The bill passes both houses – after all, with the Greens, One Nation and Xenophon affected as well as the Coalition, why would they oppose it?

Step 2: Prorogue the October sittings of parliament. Cory Bernardi is right: there’s so much uncertainty around the valid numbers in both houses there’s no point sitting until it’s sorted.

Step 3: The referendum question gives parliament the power to fix the mess. The enforced recess, therefore, gives all parties breathing space to deal with dual citizenship, office of profit conflicts and the criminal conviction rules that brought down the otherwise eminently forgettable Rod Culleton. New disqualification rules would reflect the realities of now, not 1900.

Step 4: A referendum vote in October. Having been let off running a plebiscite on same-sex marriage, the Australian Electoral Commission can do it. As for that plebiscite, the Australian Bureau of Statistics can keep chuntering along in parallel. And, given almost universal disgust at the utter farce of federal politics thanks to section 44, even so-far untainted Labor would have to support urgent constitutional change, and a double majority of voters and states would be almost certain.

Step 5: Having nutted out the detail pending the referendum, a Parliamentary Qualifications Bill, based on the newly-conferred power, is introduced into parliament in its scheduled November sittings and debated in November and early December.

Step 6: The bill is passed by both houses and the Governor-General signs it into law by Christmas. There you go: all sorted.

What about the High Court and its review of at least seven MPs and senators? The Attorney-General, George Brandis, has said it’s unlikely the learned justices won’t get around to hearing these cases until October at the earliest. If the government sets these wheels in motion, the court could still hear the pending matters but reserve its decision until the outcome of the referendum is known, and the qualifications bill could be framed to allow the eligibility of those MPs before the court to be deemed as covered by the legislation – which would also rule out the already-disqualified Culleton and former Family First senator Bob Day.

All this is not easy, but possible. Yes, racing the clock to get clarity by rapid constitutional change runs counter to the normally ponderous processes of government and the law. But the system copes with snap elections and postal vote plebiscites, surely there’s no reason it couldn’t cope with a mere snap referendum.

It may well be after Julie Bishop virtually declared war on New Zealand last week the Turnbull government jumped the shark. Surely, however, thinking outside the box, and showing decisiveness, with an imaginative plan giving Australians some confidence in the integrity of their parliament, is better than last week’s farnarkling in directionless panic.

Tezza’s Six Point Plan is not perfect or foolproof, but it’s feasible and possible. Prime Minister, if you like it, it’s yours.

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