Following several disqualifications under sub-section 44(i), in particular the 2017–18 Australian parliamentary eligibility crisis, in which several high-profile politicians were forced to resign, a new review of the whole section was instituted on 28 November 2017.
[6] Following several disqualifications under sub-section 44(i) during 2017, on 28 November 2017 Prime Minister Malcolm Turnbull asked the Commonwealth Parliament's Joint Standing Committee on Electoral Matters to conduct a new inquiry into the section, including the possibility of amendment.
[27] A similar case arose in 1950, with independent candidate Henry William Crittenden petitioning for Gordon Anderson (Kingsford Smith) to be disqualified on the basis of his Catholicism.
The Call to Australia party's Elaine Nile challenged his election on grounds that included that "His actions against the vessels of a friendly nation indicate allegiance, obedience or adherence to a foreign power".
[note 2] Additionally, Deane J thought that s 44(i) requires a "mental element" not only as to "acknowledgment" but also as to being "a subject or a citizen" of a foreign power: "it applies only to cases where the relevant status, rights or privileges have been sought, accepted, asserted or acquiesced in by the person concerned".
That part of the challenge was not pursued however as Kelly conceded that she was incapable of being chosen as a member of the House of Representatives while serving as an officer of the Royal Australian Air Force.
[36] Chief Justice Murray Gleeson ruled that the United Kingdom qualified as a "foreign power" under section 44(i), and as a British citizen Hill was therefore unable to take up her Senate seat.
The first two of the politicians whose dual citizenship status was revealed, Australian Greens Senators Scott Ludlam and Larissa Waters, resigned from Parliament shortly afterwards.
[55]: para 19 On that approach, it firstly affirmed the view taken in Sykes v Cleary that the question of eligibility is to be determined with reference to the point of nomination.
[55]: para 48 It followed that each of Joyce, Ludlam, Nash, Roberts and Waters "was therefore incapable of being chosen or of sitting as a senator or a member of the House of Representatives (as applicable)";[56] however, Canavan and Xenophon had been eligible due to not holding foreign citizenship.
[68] On 1 February 2018, before any further court proceedings, Feeney announced his resignation from the House of Representatives, and confirmed that he had been unable to find documentation proving his renunciation of British citizenship.
In July 2019, Michael Staindl lodged in the Court of Disputed Returns a petition alleging that his electorate's MP, Josh Frydenberg—the federal treasurer and deputy leader of the Liberal Party—was ineligible under s 44(i) because due to being a citizen of Hungary.
[30] These related to the $120 fine for paddling a kayak in front of the USS Joseph Strauss and being imprisoned for one month in 1972 for refusing to be conscripted to fight in the Vietnam War.
The High Court rejected each of these arguments, holding as to the latter that in section 44(ii) the reference to a possible sentence relates to the seriousness of the offence and not to the liability of a particular convict.
[86] On 11 January, after receiving an official copy of the judgment, the President of the Senate wrote to the Governor of Western Australia, to notify her that Culleton's seat had become vacant due to his having become an undischarged bankrupt on 23 December 2016.
[89] However, Culleton's bankruptcy ceased to determine his eligibility when, later on the same day but in a separate case, the High Court declared that he had been ineligible for election to the Senate owing to his conviction of an offence punishable with a sentence of one year or more, under subsection 44(ii).
[90] Subsection 44(iv) refers to an "office of profit" in the traditional sense of a position carrying an entitlement to any form of financial benefit, including salary.
Deane J dissented, holding that it was sufficient if the candidate is qualified at the moment when the result of the poll is declared, by which point Cleary had resigned from his position.
Deane was concerned that to require candidates always to be qualified at the point of nomination deters the more than ten per cent (at that time) of the workforce who are employed in the public service of the Commonwealth or a State.
He thought that taking leave without pay or other emoluments, intending to resign if electoral success became apparent, is "preferable […] to the rather devious procedure of an ostensible termination of employment" under a guarantee of reinstatement if not elected, as has been established by Commonwealth and State legislation (para.
[note 3] During the period between the declaration of her election in March 1996 and taking her seat on 1 July of that year, Jeannie Ferris had been employed by Liberal Party Senator Nick Minchin.
In the course of the 2017 Australian parliamentary eligibility crisis, replacements were appointed on 10 November 2017 to all Senate vacancies resulting from disqualification except the seat that had been occupied by Fiona Nash.
[97] The recount resumed excluding both Nash and Hughes, electing Jim Molan, the seventh candidate on the Liberals' and Nationals' joint ticket.
[99][100] After Senator Jacqui Lambie was found to be ineligible under s 44(i) owing to foreign citizenship, her apparent successor was deemed to be Steve Martin.
On this basis Barwick CJ concluded that the interest "must be pecuniary in the sense that through the possibility of financial gain by the existence or the performance of the agreement, that person could conceivably be influenced by the Crown in relation to Parliamentary affairs".
[103] The decision has been criticised as taking a narrow approach to the construction of the section[104] that robs it of most of its efficacy, rendering it almost useless as a check upon would-be fraudulent politicians[105] and offering "little practical protection to the public interest or Parliament's reputation".
[110] Kim Beazley, the Leader of the Opposition moved that the Court of Disputed Returns should decide whether Entsch's seat in the House of Representatives had become vacant because he had a pecuniary interest in an agreement with the Commonwealth.
[114] On 5 April 2017 the High Court held that Re Webster was wrong and should not be followed; its reasoning was based on consideration of the Convention Debates, as permitted since Cole v Whitfield in 1988.
[115][116] In August 2017, it was reported that Liberal National Party Senator Barry O'Sullivan could be in breach of s 44(v) as a shareholder in a family construction company subcontracted for work on a federally funded road project in Queensland.
The Australian Labor Party (ALP) opposition and some community groups believed that Gillespie also had an indirect financial relationship with the federal government, in that he owned a suburban shopping complex in Port Macquarie which leased premises to an Australia Post licensee.