That's the Law | Michael Evans

POOR FORM: It appears even our esteemed parliamentarians struggle with the routine tedium of filling out forms (correctly). Photo: FILE PHOTO
POOR FORM: It appears even our esteemed parliamentarians struggle with the routine tedium of filling out forms (correctly). Photo: FILE PHOTO

Forms. Doesn't everyone love filling in forms (tongue firmly in cheek)?

We need to fill in forms almost everyday and in almost all walks of life. Best case is they are short and simple so the tedium is kept to a minimum, but quite often they can be that terrible combination of both boring and complicated.

Being a member of the Commonwealth parliament is a prestigious job, and one which we would hope would attract our best and brightest. You would think that are parliamentarians would be aces at filling in forms, but as the events of the last few months have shown they are as bad, if not worse, than the rest of us.

What's this all about? Well as Dennis Denuto would say "It's the constitution, it’s Mabo, it's justice, it's the law, it's the vibe". More specifically section 44(i) of the constitution which prohibits anyone from being a senator or member of parliament that is under "any acknowledgment of allegiance, obedience, or ahead to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power".

In summary then, you are not eligible to enter parliament if you hold citizenship of another country. Apparently when nominating before an election there is a box that must be ticked confirming that you do not hold foreign citizenship.

What has come to light in recent months are a number of members of parliament who are (or were at the time of nominating) citizens of foreign countries.

To be fair, it's not quite as obvious as it sounds and usually this occurred by descent: the citizenship was automatically conferred by reason of place or birth or parentage, and no active steps were taken to become a citizen.

In arguments before the High Court it was put that the relevant persons should not be disqualified because they didn't know that they had another citizenship. In other words they would have to know about the other citizenship, or be wilfully blind to its existence, in order to be disqualified.

The keen eyed amongst you will have noticed that nowhere in section 44(i) is knowledge mentioned. The High Court noticed that too. They said that the section had to be given its "ordinary and natural meaning" and that only way out of disqualification was if the person had taken "all steps that are reasonably required by the foreign law" to renounce.

If it seems harsh to be disqualified because of a citizenship you didn't know about, the High Court has an answer for that too, saying "nomination for election is manifestly an occasion for serious reflection on this question" and noted that the nomination form required a declaration that the nominee did not fall foul of section 44(i).

So the conclusion of the High Court was, the section says what it means, and means what it says. It also concluded that nominating for parliament is a serious business, and if you are going to do it, you should check your facts. Hardly controversial and perhaps an answer to those suggesting this some form of constitutional crisis.

A thought to leave on though. It would appear that those disqualified will keep their salaries. The total for all of them will be some multiple millions. For the ordinary worker many contracts provide for over-payments to be paid back, indeed for example in NSW Health over-payments must be paid back even if it was all the employers fault.

Perhaps the conversation should be about changes to mean those that have been paid without any entitlement should pay it back?