Leyonhjelm: We need a referendum to fix the post-Section 44 government

The Section 44 fiasco severely wounded the democratic process in this country. To avoid us returning to the same point, we need lasting change.  



The parliamentary committee inquiring into Section 44 of the Constitution – the Joint Standing Committee on Electoral Matters – has got it right.

We need a referendum to overcome the problems caused by Section 44.

The Liberal Democrats are strong supporters of small government, but are also strong supporters of democratic government. Section 44 is a threat to our democracy, which is why we support a referendum to fix it.

The problem is not about our current crop of politicians and those who have failed to do their paperwork. It is about who can nominate for election to represent us, now and into the future. As it stands, potentially half the Australian population faces unreasonable burdens to become qualified, and many would not even be aware that they are disqualified.

Section 44, as it has been interpreted by the High Court, gives foreign governments control over eligibility to our parliament.

A foreign government can disqualify an Australian parliamentarian by changing its citizenship laws. For those who are simply intending to nominate, it can also sit on its hands when processing renunciation paperwork, preventing someone from nominating. It is even conceivable that a foreign government could expedite renunciation by a friendly parliamentarian, but sit on its hands if the parliamentarian in question had spoken out against that government’s human rights abuses.

Thus Section 44, a provision designed to avoid foreign influence in our democracy, could actually be a vehicle for foreign interference. It could literally give rise to our own version of the Manchurian Candidate.


Big government means millions of Australians are public servants or have a contract with the government. They should not have to quit or give up their contracts to run for parliament.


Section 44, as it is now interpreted by the High Court, also unjustly penalises Australians for family matters well outside their control.

If your real father is not who you thought he was, if you were adopted, if your parents were never married, if your parents don’t know or didn’t communicate either their background or the background of their parents, you shouldn’t be prevented from running for parliament. And yet, each of these may present significant obstacles not faced by others with more conventional backgrounds.

Finally, Section 44 unfairly penalises individual Australians for the fact that we are now enduring big government.

Big government means millions of Australians are either public servants (including teachers, ambulance officers and police) or have a contract with the government. Big government is not the fault of these Australians, and they should not have to quit their jobs or give up their contracts in order to run for parliament.

The High Court has ruled that when a Senator leaves parliament mid-term and a replacement is required, that replacement must not have been disqualified at any time between the election and the time the replacement is required – up to six years later. Thus a public servant or someone with a contract with the government would need to remain out of the public service and not sign any contracts with the government for this entire period, just in case the opportunity to replace a Senator arises.

This is absurd.

I played a key role in shaping the report that has recommended a referendum on Section 44. And I will push for a referendum in the period ahead, despite the Prime Minister’s opposition and the common misconception that politicians just need to do their paperwork.

To get a better crop of politicians, we need all Australians to be eligible, not just the lucky ones.



David Leyonhjelm is a Senator for the Liberal Democrats.


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