About the inquiry
Objectives and scope
1.1
On 26 October 2021 the Minister Assisting the Prime Minister and Cabinet, the Hon Ben Morton MP, asked the Joint Standing Committee on Electoral Matters (JSCEM) to inquire into and report on the Candidate Qualification Checklist (the Checklist).
Inquiry conduct
1.2
A media release announcing the inquiry was issued on 1 November 2021 calling for submissions to be received by 8 November 2021.
1.3
The Committee also invited submissions from Government Departments, organisations and individuals; including registered political parties, political interest groups, and academics.
1.4
The inquiry received 5 submissions which are listed at Appendix A.
Report structure
1.5
This chapter examines the Exposure Draft Qualification Checklist relating to eligibility under section 44 of the Australian Constitution.
1.6
The Committee thanks all the submitters that provided evidence to the inquiry and notes the additional comments relating to the eligibility of candidates under section 44(iv) of the Australian Constitution: that a person is incapable of being chosen as a Member of Parliament if he or she holds an ‘office of profit under the Crown’. As this is outside the terms of reference of this inquiry, the Committee has not undertaken an examination of this in the report.
History of the qualification checklist
1.7
Section 44 of the Australian Constitution provides the circumstances in which a person is incapable of being chosen or sitting as a senator or a member of the House of Representatives, and includes under section 44(i) that a person who holds or is eligible for dual citizenship is not eligible to be elected. During the 45th Parliament, 15 senators and members of the House of Representatives were disqualified or resigned from Parliament due to their citizenship status, which impacted their eligibility to stand as a candidate or serve as a Member of Parliament under section 44.
1.8
These disqualifications and resignations created multiple vacancies in both Houses of Parliament. Between December 2017 and July 2018, seven by‑elections were held to fill these positions for the remainder of the 45th Parliament.
1.9
JSCEM conducted an inquiry into the impact of section 44 on Australian democracy, tabling its report, Excluded: The impact of section 44 on Australian Democracy, in May 2018. The inquiry received a number of submissions suggesting that the nomination process include checklists. The committee made four recommendations including:
In the event that a referendum does not proceed or does not pass, that the Australian Government consider strategies to mitigate the impact of section 44 as outlined in this report.
1.10
In May 2018, the Australian Electoral Commission (AEC) announced that the ‘nomination process for people wishing to stand as candidates in elections and by-elections has been updated to include an option to provide information on their eligibility to be elected to Parliament.’
1.11
In its press release announcing the changes, the AEC stated that the ‘qualification checklist will be included in the nomination form for candidates as a result of the Electoral and Referendum Amendment (Eligibility) Regulations 2018 that commenced on 30 May 2018.’
1.12
Candidates would now have ‘the option to complete a qualification checklist outlining their Australian citizenship and their family history,’ and to demonstrate their eligibility to nominate early in the election process. The checklist was entirely voluntary for nominees and was first used in five by-elections held in Longman (Qld), Mayo (SA), Braddon (Tas), Fremantle (WA) and Perth (WA).
1.13
In November 2018 the Australian Government introduced the Electoral Legislation Amendment (Modernisation and Other Measures) Bill 2018 (the Bill), which would ‘require candidates nominating for federal elections to complete a qualification checklist relating to their eligibility under section 44 of the Australian Constitution.’
1.14
The Bill sought to encourage individuals considering nomination to ‘seriously consider’ whether they were eligible before going through the nomination process. The Bill also included a provision to ‘make it compulsory for prospective candidates to complete the mandatory elements of the Qualification Checklist,’ with a failure to do so rendering the nomination invalid.
1.15
The Checklist, a ‘self-assessment and transparency tool’, placed the onus on individuals to prove to themselves and the Australian public that they were eligible to nominate for a position in Parliament. This new Checklist was ‘essentially similar’ to the qualification Checklist used in the 28 July 2018 by-elections, except that it would now be mandatory to submit the Checklist to the AEC. The Checklist contained a ‘mix of voluntary and mandatory questions regarding a person’s eligibility status.’
1.16
The Bill was considered by the Senate Standing Committee for the Scrutiny of Bills in December 2018 which highlighted possible privacy concerns:
It appears to the committee that a completed Qualification Checklist could contain a great deal of personal information relating not only to the applicant seeking nomination, but also to the citizenship and birth places of the applicant's parents, grandparents (including biological or adoptive parents or grandparents) and former or current spouses or similar partners. Consequently, it appears that personal information relating to third parties could be included on a public website without those parties' consent.
1.17
Providing that candidates provided consent, the personal information was published on the AEC website and could potentially be published as a Parliamentary Paper.
1.18
In February 2019, the Australian Parliament passed the Electoral Legislation Amendment (Modernisation and Other Measures) Act 2019.
1.19
The Checklist was first implemented in the 2019 federal election, where candidates were required to complete the Checklist with their nomination and the completed checklists were made available on the AEC website. One citizenship case was referred to the High Court in July 2019 following the election, which was dismissed by the Court of Disputed Returns.
1.20
As part of its inquiry into the 2019 federal election, the JSCEM examined the operation of the Checklist where it found that:
…the wording on the 2019 election Checklist did not ensure that date and country of birth were required as mandatory data. Accordingly, some candidates left the fields blank or provided obscuring information, where it could have been possible to provide those key facts, for publication and public scrutiny. This information is highly relevant to ascertaining a candidate’s citizenship status. To the extent that there are potential privacy law interactions, the law should be amended to override privacy law because of the strong public interest in knowing that a candidate is qualified to sit in Parliament.
1.21
As a consequence, the JSCEM recommended that:
…the Candidate Qualification Checklist be revised before the next election to make mandatory the provision of information about the date and country of birth for candidate, their parents and grandparents. Where any of this is not known, a candidate should be required to make a categorical statement that the information is not known. Where exact date is not known for the birth of the candidate, their parent, or a grandparent, an option should be allowed to state the year instead. The AEC should also be required to identify the day on which checklists will be published, when publishing the timeline for an election.
Candidate Qualification Checklist exposure draft
1.22
In its submission, the Department of Finance commented that they, ‘in consultation with the AEC and the Office of Parliamentary Counsel, developed a draft Checklist that was released for public comment on 4 August 2021’.
1.23
The Department of Finance elaborated on the proposed amendments of the Exposure Draft of the revised Checklist (Exposure Draft) adding:
The proposed amendments to the Candidate Qualification Checklist make some questions mandatory for candidates, request additional information as to a candidate’s date of birth, place of birth, date of naturalisation (if not an Australian Citizen at time of birth), and request the date and place of birth for all parents and grandparents of a candidate. The amendments also formalise the process for candidates to advise additional details in relation to their citizenship, answering for example if they became a citizen of a country other than Australia as a result of a relationship with a current or former spouse or similar partner.
1.24
Submitters to the inquiry were generally positive about the use of the current Checklist and supported its implementation.
1.25
The Australian Labor Party (ALP) stated that it supported the ‘proposed changes to the Qualification Checklist’ recommended by JSCEM in its inquiry into the 2019 federal election. The ALP elaborated:
The changes recommended by JSCEM strike an appropriate balance between the need to ensure that candidates are eligible to sit in the Parliament, the need to ensure that it is not unduly difficult for candidates – including independents and candidates from minor parties – to nominate for the Senate or the House of Representatives and the personal privacy of the candidate and the candidate’s family members (including spouses and former spouses).
1.26
The Liberal Party of Australia stated that the Checklist proposed in the Government’s Exposure Draft and in particular the ‘questions relating to candidates’ grandparents in the new checklist are more thorough and better structured.’
1.27
Mr Benjamin Cronshaw, private capacity, believed that the Checklist was beneficial in simplifying the process of nomination and outlined ‘the necessary information that candidates need about their eligibility.’
1.28
However, some noted challenges in obtaining evidence on the citizenship status of grandparents, parents, and extended family and questioned whether that information adequately determined a potential candidate’s eligibility under section 44.
1.29
Senator Jacqui Lambie highlighted the potential difficulties in candidates obtaining information on where their grandparents or parents were born stating that a candidates ‘eligibility to be elected to Parliament can’t be determined by whether or not you know where your parents and grandparents were born.’
1.30
Mr Cronshaw agreed with the view that providing evidence of your grandparents’ or parents’ citizenship status would be ‘burdensome and potentially have more concerns for some candidates.’ He added that it ‘requires candidates being on good terms with their extended family and having the information recorded and available.’
1.31
Professor Kim Rubenstein highlighted the possibility that the current eligibility requirements as well as the ‘generous reach of inclusion by countries of their expatriate or descendant citizenry’ could potentially exclude some candidates from nominating for election. Professor Rubenstein added that candidates who are found to have been ineligible due to their citizenship status is not an ‘outcome that enhances Australia’s democracy; indeed, it continues to undermine it’; noting that ‘it is anomalous that Parliament has not sooner moved to repeal section 44(i)’.
1.32
Dr Rayner Thwaites, Senior Lecturer in Public and Administrative Law, University of Sydney, suggested that to meet the eligibility requirements under section 44, a ‘detailed knowledge of the relevant foreign nationality law is required.’ Dr Thwaites provided the following suggestions:
funding and resources should be committed towards education to ensure that knowledge of parental or grandparental foreign citizenship can better be converted into knowledge of their eligibility under the Constitution; and
the consideration of new approaches to meeting the requirements of s44(i) that make compliance less onerous, on a principled basis.
1.33
The ALP held the view that the proposed Checklist went beyond what was originally recommended by JSCEM in its report into the 2019 federal election, in particular the proposed additional mandatory requirement for candidates to disclose information about their former spouses:
…it is highly unlikely that the citizenship status of a former spouse will – in and of itself – have any relevance to a candidate’s own citizenship status. And yet the Government’s proposed new Qualification Checklist would require all candidates to disclose information about their former spouses, including in circumstances where there may be very good reasons why a candidate would not wish to contact a former spouse to ascertain that information (including, for example, because of a history of family violence).
1.34
The ALP suggested that the proposed changes to the Checklist would potentially create barriers for potential candidates seeking nomination:
…make it more difficult for candidates to nominate for the Senate or the House of Representatives and require the public disclosure of personal information that is irrelevant to a candidate’s eligibility to sit in the Parliament, without any obvious – let alone commensurate – benefit to the public or the electoral process. Instead, it would create a further barrier to entry for candidates which may potentially restrict the diversity of our elected representatives.
Committee comment
1.35
The information requested in the proposed Candidate Qualification Checklist Exposure Draft is highly relevant when ascertaining a candidate’s citizenship status and eligibility under section 44 of the Australian Constitution. It should therefore be made available for the purposes of the nomination process.
1.36
Transparency and public scrutiny are basic features of democracy. Reinforcing the integrity of the nomination process further enhances this transparency, while also limiting the unnecessary expenditure of public funds used to determine whether a candidate is eligible to be nominated for election.
1.37
The Exposure Draft adopts the bipartisan recommendation of JSCEM, and presents the existing questions in a more approachable format for candidates.
1.38
In response to submissions to the inquiry, the Committee notes that the Exposure Draft of the Candidate Qualification Checklist does not require candidates to provide any further information relating to parents and grandparents than what was proposed by the bipartisan recommendation of JSCEM.
1.39
Questions 4, 5 and 6 of the current Checklist already asks candidates to provide relevant details with respect to foreign citizenships held by parents and grandparents, and the period those citizenships were held, to the extent known. The Exposure Draft likewise asks these same questions to be answered relating to parents and grandparents, to the extent known.
1.40
The Committee similarly notes that the Exposure Draft of the Candidate Qualification Checklist does not substantively alter the information requested relating to current and former spouses, aligning the formatting of questions with the format for parents and grandparents.
1.41
Questions 7, 8 and 9 of the current Checklist already asks candidates to provide relevant details with respect to foreign citizenships held by current and former spouses, including whether that citizenship was held at the time of marriage, to the extent known, and whether a foreign citizenship was conferred to the candidate as a result of the relationship. The Exposure Draft likewise asks these same questions to be answered relating to current and former spouses, to the extent known.
1.42
In order to maintain public confidence in the electoral system, the Committee therefore recommends that the Exposure Draft of the Candidate Qualification Checklist be enacted as soon as practicable.
1.43
The committee recommends that the Australian Government enact the Exposure Draft of the Candidate Qualification Checklist.
Senator the Hon James McGrath
Chair