Neither New Nor Unexpected?: S 44(i) Commonwealth Constitution Interpretive Choices, Representative Government and Rehabilitative and Restorative Reform

Abstract

The High Court’s decisions regarding s 44(i)' of the Constitution in the Citizenship Seven case” and in Re Gallagher’ in finding disqualification of parliamentarians as ineligible to sit, present issues concerning the construction of representative government by the High Court, the Executive and the Parliament. These institutional responses to representative government, as mandated by sections 7 and 24 of the Constitution,* have a significant impact upon representational participatory rights. <br/> The article’s thesis is that the High Court’s recent s 44(i) constitutional jurisprudence has revealed some significant interpretational deficiencies in articulating the scope of this aspect of representative government, namely the capacity for representation where foreign citizenship issues emerge. The High Court’s interpretive choices were demonstrably at odds with resolving s44(1) matters in a manner consistent with a broader and inclusive conception of representative government. Interactions of the other institutions of government, the Executive and the Parliament, likewise reveal institutional failings with s 44(i) matters. Those subsequent decisions are also at odds with a broader and inclusive conception of representative government. The central legal problem is that the institutional approach of the Court has affected qualitatively the form and realisation of elected representative participation under the Constitution. This article, through analysing and commenting upon a series of interlocking issues, expounds how and why this situation has come about. Different interpretive choices were open to the Court, meaning that consequences flowing from such decisions were not inevitable. Such analysis provides context and will help frame Executive and Parliamentary remedial responses.