Law Essay: Analysis of Section 44 of the Australian Constitution

This essay delves into Section 44 of the Australian Constitution, which outlines the qualifications and disqualifications for individuals seeking to become senators. It begins with an introduction to the role of senators and the importance of the section. The essay then details the specific criteria for eligibility, including age, citizenship, and electoral qualifications, as well as the limitations imposed on candidates, such as holding dual citizenship, being an undischarged bankrupt, or holding an office of profit under the Crown. The essay uses case law, including Sue v Hill and Re Wood, to illustrate the application of these rules and their impact on potential senators. The conclusion summarizes the key points and emphasizes the significance of Section 44 in maintaining the integrity of the Australian Parliament. The essay also provides a bibliography of sources, including websites, statutes, and case law, used in the research and writing of this essay.

Running Head: Law 1
Law

Law 2
Introduction:
Section 44 of Australian Constitution states, disqualification regarding appointment of candidate
as senator. It must be noted that government choose senators from the people of each state and
territory, and these senators are choose through voting at periodic elections. Senator represents
the state for the period of six years and term of territory senators will coincide with the terms of
the House of Representatives1.
In this essay we discuss the disqualifications stated by section 44 of the Australian constitution.
Subsequently paper is concluded with brief conclusion.
Section 44 of Australian constitution:
Those provisions which govern the qualifications regarding candidates who want to appear in
elections and of senators, are stated under Australian Constitution and the Commonwealth
Electoral Act 1918 (CEA). The main aim of these provisions is to make sure that people who
stand for elections, and are members of the national Parliament must fulfill their duties with due
care and free from undue external interference.
It is necessary that candidate who wants to appear in election for position of senate must be
 At least completed the age of 18 years.
 Must be a citizen of Australia.
 An elector who wants to vote must be qualified to become an elector.
1 Matthew Doran, Entitled' to dual citizenship? The grey area in Section 44 of the constitution, <
http://www.abc.net.au/news/2017-07-28/citizenship-grey-area-in-constitution-tripping-up-mps-senators/
8754586>, Accessed on 6th October 2017.

Law 3
During the period of 1901, these requirements were completely different but Constitution of
Australia imposed power under Parliament to change these requirements, and on many occasions
parliament make changes in it. If any person is the member of the House of Representatives or a
state or territory legislature must give his resignation before standing for the Senate, and this is
stated under section 43 of the Constitution and section 164 of the CEA. It is not possible for
person to make multiple nominations, stated under section 165 of the CEA2.
Section 44 imposed some limitations on eligibility of candidate, and these limitations are stated
below. This section states that person cannot be appointed as senate if:
 Such person is the citizen of a foreign power; or
 Such person is attainted of treason; or
 Such person has been convicted and sentenced for any offence under Commonwealth or
state law which is punishable by a imprisonment of 12 months or more; or
 Such person is an un discharged bankrupt; or
 Such person holds an office of profit under the Crown; or
 Such person has a pecuniary interest in any agreement with the Commonwealth Public
service3.
Furthermore, it must be noted that if any person convicted for offence like bribery or undue
influence then such person is disqualified from being chosen as a senator for the period of 2
years after the conviction.
2 Parliament of Australia, Section 44 of the Constitution, <
http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/
Publications_Archive/archive/Section44>, Accesssed on 6th October 2017.
3 Commonwealth Of Australia Constitution ACT - SECT 44.

Law 4
This can be understood through case law Sue v Hill4. In this case, High Court provides its
decision on 23rd June 1999. Declaration was made by the majority of High Court that one nation
senator-elect names as Heather hill was not qualified for being chosen as senator and not duly
elected within the meaning of section 360(1)(v) of the Commonwealth Electoral Act 1918 (Cth).
High Court ruled that United Kingdom of Britain and Northern Ireland was a 'foreign power' for
the purposes of s 44(i) of the Commonwealth Constitution.
There is one ore case which help in understanding the issue related to section 44, Re Wood
[1988] HCA 22.5 In this case, petition was dismissed by High Court by Judges Brennan, Deane
and Toohey JJ in December 1987 on technical grounds. Judgment made by both judges includes
number on observations regarding section 44 of the Constitution.
 Disqualification is not happened only on the ground of conviction of an offense, but it
was necessary that person must serve a sentence for imprisonment for one year or more
or subject to be sentenced for that offense. Therefore, person has not been disqualified
after the sentence has been served.
 Person must have been judged as an un-discharged insolvent.
 Allegation related to allegiance of foreign power not show neither the foreign power nor
the acknowledgement related to that allegiance.
After considering the above facts, it is clear that impose restrictions on the eligibility of
Australian candidates to stand for parliament. It must be noted that effect of section 44 are clear
and does not include any ambiguousness.
4 Sue v Hill - [1999] HCA 30.
5 Re Wood [1988] HCA 22.

Law 5
Conclusion:
This paper discuss the restriction and disqualifications described by section 44 of Australian
Constitution and these disqualifications are discussed with the help of two case laws that are Sue
v Hill and Re Wood [1988] HCA 22.

Law 6
BIBLIOGRAPHY
Website
Matthew Doran, Entitled' to dual citizenship? The grey area in Section 44 of the constitution, <
http://www.abc.net.au/news/2017-07-28/citizenship-grey-area-in-constitution-tripping-up-mps-
senators/8754586>, Accessed on 6th October 2017.
Parliament of Australia, Section 44 of the Constitution, <
http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/
Publications_Archive/archive/Section44>, Accesssed on 6th October 2017.
Statute
Commonwealth Of Australia Constitution ACT - SECT 44.
Case law
Sue v Hill - [1999] HCA 30.
Re Wood [1988] HCA 22.