Section 44 of the Australian Constitution

Section 44 of the Australian Constitution lists the grounds for disqualification on who may become a candidate for election to the Parliament of Australia. It has generally arisen for consideration by the High Court sitting in its capacity as the Court of Disputed Returns.

Section 44 of the Constitution states:

44. Any person who -

shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.

But sub-section iv. does not apply to the office of any of the Queen's Ministers of State for the Commonwealth, or of any of the Queen's Ministers for a State, or to the receipt of pay, half pay, or a pension, by any person as an officer or member of the Queen's navy or army, or to the receipt of pay as an officer or member of the naval or military forces of the Commonwealth by any person whose services are not wholly employed by the Commonwealth.

The Australian Electoral Commission reproduces the section in its Candidates Handbook, where it draws particular attention to s 44(i) and (iv). As to the nomination form, it advises that to give "false or misleading information", or to "omit any information if omitting that information would be misleading", is a criminal offence and that the "maximum penalty for this offence is imprisonment for 12 months". It does not spell out that such a conviction could result in disqualification under s 44(ii).

Almost every part of section 44 has proved difficult to interpret and apply. Its replacement or revision has been frequently considered, particularly by a Constitutional Commission in 1988 and by a parliamentary committee in 1997, but their proposals have not been pursued. There has been regret that the framers of the Constitution did not accept the suggestions that criteria of disqualification be left entirely to the Parliament or that, at least, like s 34 "Qualifications of members" this section should begin "Until the Parliament otherwise provides".

Subsection 44(i) has generally been interpreted by the High Court of Australia as meaning that persons with dual citizenship are not permitted to stand for election and that a person must take "reasonable steps" to renounce their citizenship of the other country. Its interpretation has been difficult. There is the preliminary awkwardness that the Constitution itself does not require a member of the Parliament to be an Australian Citizen, although Constitution s 42 does require members to swear an oath or affirmation of allegiance to the monarch; however, Australian citizenship has been made a statutory condition of eligibility for election.

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