Link Search Menu Expand Document

The Constitution of Australia says no one is eligible for office

Date: 2020-07-17

My goal with this post is to tackle a small argument while communicating and structuring it well. It’s unlikely anyone here is familiar with it, which might be good b/c there’s less preconceived knowledge.

The initial topic was: The Constitution of Australia says no one is eligible for office

I streamed the planning process: (approx 2hrs; including grammar analysis)

ET and I looked over the planning in Tutoring Max #14


  • article tree planning + grammar tree
  • outline (text + hierarchy)

Australia has had an illegal and unconstitutional government for 119 years, and no citizen is eligible to sit in HoR or the Senate, even if they wanted to.

Australia’s constitution is not well written and has problems like being internally inconsistent. It has grammatical oddities (if not errors), and includes the implication that any elected parliamentarian passing through foreign airports is automatically ineligible to hold office. Elected officials are also required to swear allegiance to a foreign power (Queen Elizabeth II), which disqualifies them from holding office.

The relevant section of the constitution is Section 44 (s44). After the 2016 election numerous parliamentarians resigned due to s44. This triggered by-elections, but bought some MPs (members of parliament) enough time to fix the issues, allowing some of them to win the by-election.

My interpretations could be considered as outside the spirit of the law. The problem with this is that whether rules are enforced or not must be based on potentially inexplicit knowledge in judges’ or magistrates’ heads, which weakens the law because it becomes less clear when and how to apply it. This lack of consistency also means the scenarios we should or shouldn’t apply aspects of the law are blurred (unpredictability, etc, see 15m-20m). Thus people in Australian society who interact with these laws put themselves in a higher-risk situation than the original authors intended.

A person can be disqualified from being elected to parliament in five cases under s44, but we’re only interested the first case (s44.i):

[Any person who] is under any acknowledgment of allegiance, obedience, or adherence to a foreign power, or [any person who] 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 Australian Constitution – Section 44

I created an outline of this sentence to make it easier to understand: (where {...} denotes a clause and [...] is replacing words with rough equivalents)

{[anyone who] is [under X to Z]} or {[anyone who] is [Y or entitled to rights of Y] of [Z]}, {shall be [disqualified]}

  • X: any acknowledgment of allegiance, obedience, or adherence
  • Y: a subject or a citizen
  • Z: a foreign power

(Note: use descriptive names, not single letter variables; easier for ppl to understand)

Analysing s44.i

S44.i can disqualify people if they acknowledge “allegiance, obedience, or adherence to a foreign power”, which is very broad. For example, if I am passing through an airport and given an instruction by local officials (e.g. TSA officers), I’m likely to comply. Those staff work for a foreign power, and complying with their instructions is showing obedience^1 to a foreign power.

S44.i also means that claiming ignorance is an acceptable ‘get out of jail’ card. I suspect the authors wanted to include some idea like mens rea, but they’ve introduced some odd side effects with their choice of phrasing.

The Oath and Affirmation

Parliamentarians must take an oath or affirmation before sitting in parliament:

Oath: I, A.B., do swear that I will be faithful and bear true allegiance to Her Majesty Queen Victoria, Her heirs and successors according to law. SO HELP ME GOD!

Affirmation: I, A.B., do solemnly and sincerely affirm and declare that I will be faithful and bear true allegiance to Her Majesty Queen Victoria, Her heirs and successors according to law.

(NOTE – The name of the King or Queen of the United Kingdom of Great Britain and Ireland for the time being is to be substituted from time to time.)

The Australian Constitution – Schedule

It is explicitly noted in the Constitution that the head of state of the United Kingdom of Great Britain and Ireland. This makes her the head of state of at least one foreign power, from the perspective of the Constitution.

The Monarchy

Citizens of a monarchy are known as subjects of the monarch; some non-citizens might also be subjects depending on the monarchy in question and the date. For example, before 1949 all Australians were British subjects^2.

Australia is a type of monarchy, and Queen Elizabeth II is our current head-of-state.

Queen Elizabeth II is uncontroversially and universally recognised as Australia’s head-of-state. If someone were elected to parliament and they didn’t know this, they would find out pretty quick because she’s explicitly mentioned as part of the oath one takes before assuming their seat in Parliament.

Queen Elizabeth II is the head of other states, too, such as the UK and Canada.

The head of state of a foreign power is a foreign power, which clashes with s44.i.

What then, for elected officials in Australia?

An elected official in Australia must acknowledge, explicitly, their allegiance to Queen Elizabeth II as part of their swearing in.

Queen Elizabeth II is a foreign power, as she is the head of state of nations other than Australia.

Australia has had the same oath since independence in 1901. Thus every person who has taken the oath since 1901 has knowingly been allied to the King or Queen of a foreign power.

Every sitting parliamentarian of Australia since 1901 has acknowledged an allegiance to said foreign power; which disqualifies them under s44. Those people are therefore “incapable of being chosen or of sitting as a senator or a member of the House of Representatives”.

Therefore, no member of parliament has ever held office legally.

Final notes

If there had been some ruling on these arguments by the high court, there might be precedent for sitting members to have done so legally. I’m not aware of such a ruling.

Since deciding the matter of citizenship is a sovereign right of nations themselves, they are free to decide their own criteria for citizenship. Furthermore, citizenship does not need to be acknowledged by either party to be in effect; it is simply unrecognised at that point. Any nation (as long as it is recognised as a nation by Australia) could introduce a new class of citizenship defined like “any sitting member of Australian parliament is automatically granted citizenship for their full sitting period”. Doing so would mean there would be no Australian capable of sitting in the HoR or senate, as to do so would immediately disqualify them.

1: There’s a suitable definition of ‘adherence’ which fits this pattern, too, but the other two definitions in Webster’s 1913 are more appropriate.

2: well, at least according to this wikipedia page.

Notes from Tutorial 2020-07-17

  • decent focus, not trying to say too much
  • lots of info, mostly clear
  • issues as covered
  • has casued issues
  • level for ppl who want political battles
    • excuse to attack
    • good to remove technicalities

You can leave a comment anonymously. No sign up or login is required. Use a junk email if not your own; email is only for notifications—though, FYI, I will be able to see it.

Comments powered by Talkyard.