Section 44 of the Constitution of Australia
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.
It has been reviewed several times, but has not been amended. 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.
(ii) Criminal convictions[edit]
Nile v Wood (1987)[edit]
Another part of Nile's challenge to Robert Wood's election was that Wood had served a term of imprisonment in 1972 and had been convicted of obstructing shipping.[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.[31][79] The observations of the High Court about section 44 of the Constitution included that the disqualification is not simply for the conviction of an offence: the offence must be punishable by imprisonment for one year or more.[30]
(iii) Bankrupt or insolvent[edit]
Nile v Wood (1987)[edit]
A third part of Nile's challenge to Robert Wood's election was that Wood was insolvent,[30] with Wood being described as "probably the only Member of Parliament to have been elected while on the dole".[31] The High Court held that it was not enough to allege that Wood was insolvent; he had to have been adjudged to be an "undischarged insolvent".[30]
Culleton (2017)[edit]
Other proceedings concerning Culleton concerned a creditor's petition in the Federal Court, seeking to have Culleton declared bankrupt. On 23 December 2016 the Federal Court made a sequestration order which had the effect of making Culleton an undischarged bankrupt.[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.[87] Culleton commenced proceedings in the High Court to challenge the power of the President to declare his seat vacant, but this challenge was rejected by Justice Gageler on 31 January 2017.[88] The sequestration order and therewith the finding of bankruptcy were confirmed by a full court of the Federal Court on 3 February 2017.[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]