A Strange Aspect of the Australian Constitution

by Kevin Jon Heller

I’m not a comparative constitutional-law scholar, but I find it interesting that, pursuant to Section 44(iii) of the Constitution of Australia, no one can serve in Parliament who “[i]s an undischarged bankrupt or insolvent.”  The solvency requirement harkens back to the bad old days of U.S. history, when most States prohibited individuals who did not own property from voting.  But the requirement lives on in Australia — and may well force one of the leaders of the Greens out of Parliament:

GREENS leader Senator Bob Brown has accused the Tasmanian Government of trying to force him out of the Federal Senate.

Dr Brown last week received a letter from Forestry Tasmania, a wholly-owned State Government business, demanding he pay nearly $240,000 in legal costs by June 29.

The Greens Senator was ordered to pay the fees by the Federal Court, after he lost on appeal his long running court case against Forestry Tasmania to halt logging in the Wielangta State Forest on Tasmania’s east coast.

Dr Brown claimed the logging was endangering the survival of the threatened wedge tail eagle and Swifts parrot and was therefore contrary to national environmental laws.

The longtime environmental campaigner said yesterday he was not refusing to pay the court-ordered $239,368 to Forestry Tasmania.

But he said he did not personally have the funds available to pay the legal demand, and could not raise them in the next three weeks.

The letter from Forestry Tasmania’s lawyers threatens it will seek to declare Dr Brown bankrupt if he cannot pay the required sum.

Any senator declared bankrupt or insolvent – or who is forced to enter into a payment schedule with creditors – is immediately disqualified from holding a seat in Federal Parliament.

Dr Brown said he had no doubt the Tasmanian Government and other “minions of the logging industry” were seeking to force him from parliament because of his long term quest to end all logging of Australia’s native forests.

“I’m not complaining (about the legal costs); these are typical pressure tactics being used by the logging industry,” Senator Brown said in Hobart.

“But I will not back off either from defending Tasmania’s magnificent forests – not now, not ever.”

I suppose I understand the solvency requirement — a bankrupt MP is perhaps more likely to engage in corruption than a wealthy one.  But immediate disqualification seems both excessive and subject to misuse, as Brown’s situation indicates.  If any of our Australian readers know why the requirement has never been eliminated, I hope they will chime in.

http://opiniojuris.org/2009/06/08/a-strange-aspect-of-the-australian-constitution/

7 Responses

  1. Kevin, another interesting element of article 44 is its bar on dual citizens holding political office (any person “under any acknowledgement of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or citizen of a foreign power”), which has also been subject to recent scrutiny.

  2. I don’t actually know why, but I suspect it might be because the double-majority referendum requirement under s 128 makes it difficult to change the constitution (only 6 of 42 attempts so far have succeeded), and bankrupt senators don’t seem like the easiest cause to gather broad political support for, nor do they seem like a pressing or widespread enough problem for governments to really want to hold expensive and labour-intensive referenda on them. I would guess that it’s  more inertia than a deliberate policy choice.

  3. Law studen is basically right that it is s128 and institutional inertia.  As he notes it takes both an absolute majority plus a majority in the majority of States, and hence only a bipartisan political effort can succeed (and even then it is relatively easy for interest-group opposition to win).

    We have had in barely over a century 44 amendements proferred of which only 8 have passed. The latest to lose was the referendum on becoming a republic, even though it had pretty broad bipartisan support.

    Almost every yes vote has been for largely technical issues which threatened (or could plausibly be seen to threaten at that time) the Commonwealth itself. For example the last yes was 1977 which made some very dry technical amendments but followed a mini-crisis and the only sacking of the Government in our history.

    Personally, even though I like the Swiss practice, I would have it no other way.

    PS: There is NO CHANCE of a referendum passing to allow bankrupt senators to sit, Australians aren’t only reputedly skeptical of politicians. Only something like gay marriage would be a less likely proposition.

  4. This is not an explanation for why the rule was never repealed, nor a reason of principle as to why it was enacted in the first place, but it may be as well to note that the same rule exists in the UK. Certainly, a member of the UK Parliament is ineligible to sit when bankrupt; I don’t know if the same applies in the Scottish and Northern Irish devolution Parliaments established in 1998.

    As with Australian law, I don’t think MPs are forced to resign on becoming bankrupt (formally, they can’t; the traditional substitute for resignation is to seek, and be granted, appointment as Crown Steward and Bailiff of the Chiltern Hundreds…). They are simply excluded.

    Anyway, this may well point to reasons for the rule considerably predating the Australian constitution. What those are, I am at a loss to say.

    I seem to recall, incidentally, that the novelist Jeffrey Archer was forced to resign as an MP (see above) or at least not to seek reelection when he was down on his luck financially. (He’s now The Lord Archer of Weston-super-Mare; no such troubles in the second Chamber, I suspect – not that he need care now)

  5. Also, I find your supposed understanding a bit odd. Surely the roots of the rule are just old-fashioned prejudice against bankruptcy? Susceptibility of corruption might be relevant, but it smacks of post-facto rationalisation to me.

    And while I am at it I find Senator Brown’s predicament a bit odd too, it is not as if this was not well within the range of likely outcomes when they first filed the suit. The delicious irony would be if they had escaped security for costs (No 1 rule of greenie litigation: seek security for costs!) only because Brown was a plaintiff and pleaded his office, stature and reputation as a basis for not requiring security.

    (Of course, it is much more likely that either a) the defendants’ lawyers were too stupid to ask for it, or b) were prevented by some government agency contractors’ code of conduct, or c) were denied on the grounds of public interest – but it would have been ironic all the same)

  6. @ Patrick “Only something like gay marriage would be a less likely proposition.”  — Explain why we need a constitutional amendment to allow gay marriage?

    Also, why don’t you read the Wielangta decisions rather than bloviating.

  7. Well, we don’t, I don’t believe. But we could, hypothetically, have an amendment specifically to recognise gay marriage, for example.

    I was only searching for a topic less likely to be ran, there was nothing particularly scientific about it.

    And I’m not sure why I should read the decision, I am not particularly interested in it and I wasn’t commenting on it. In my experience, the stuff about orders for costs etc would ordinarily be hidden away in an interlocutory decision somewhere, or maybe only in a transcript.

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