I have been watching the goings-on in politics both here in Australia and internationally recently and, while I don’t usually voice my opinions on politics publicly, there have been some great examples of why the government is a bad example of good governance for the business community. Over the coming weeks I’ll give my thoughts on some examples.
Let’s start with the s44(i.) of the Australian Constitution debacle which lists the grounds for disqualification on who may become a candidate for election to the Parliament of Australia.
Section 44 of the Constitution states:
- 44. Any person who –
(i.) Is 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:
shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.
Personally, being a dual citizen and thinking, rightly or wrongly, that Australia is the most multicultural country in the world, that this clause is a little silly. Why is it still a part the Constitution that governs today’s Australia? In addition, every parliamentary candidate receives a Candidate Handbook which reproduces this section of the Constitution. The US Congress and the British parliament which were used as a model for the Australian parliament, as well as countries like New Zealand and Canada do not prohibit members of parliament from holding dual citizenship.
But here’s the governance lessons: –
Why hasn’t there been regular reviews of the Constitution and if there has been, why wasn’t this clause reviewed and clarified? In 1981, 1988 and 1997 the Constitutional Commission reviewed this section and made recommendations to delete and/or amend this clause of the Constitution. They also suggested a tweak to s34 on Qualifications of Member to begin with “Until the Parliament otherwise provides…” which would have let the Parliament decide if one’s allegiance status.
The Australian Constitution was written 100 odd years ago, and this clause has gained a lot airplay recently with regards to allegiances – has none of the 1,000s of parliamentary candidates not read the Handbook, and if they had, had they not comprehended what this clause meant? There have actually been several cases whereby candidate’s eligibility has been challenged because of s44. The instances I like the best are in 1946 and 1950 where eligibility was questioned due to the candidate’s Catholic faith. The claim was being a Catholic the candidates were under an allegiance to a foreign power.
So, what would good governance look like with regards to this clause of the Australian Constitution.
- Constitutions outline the objects of the organisation and the rules on how the organisation should be managed. Constitutions should be reviewed regularly, and one may say that the Australian Constitution is reviewed regularly by the Constitutional Commission, but it also needs to reflect the community’s views and values. It would seem that political advantage and not the views of the community has been why the Australian Constitution has not been amended per the recommendations.
- Culture is a key part of good governance. s44 reflects the culture and values of the community as it was 100 odd years ago but does not seem (at least to me) that it reflects the culture and values of the Australian community today which is very multicultural.
- In a corporate or not-for-profit board situation, the board act as a link between the organisation and the community it serves. Representation means ensuring your organisation knows how the community sees it and what the community expects from it. With regards to the Australian Constitution, the members of parliament are the body that is supposed to represent the people, however, politics seem to be the driver behind decisions and not necessarily the views of the people they represent.
- Board members are servants of the board and the organisation. Under various legislation e.g. Corporations Act or ACNC Act, board members have various governance principles which they must abide from, including a duty of care. The government has questioned various corporate board members and c-level officers over their duty of care shown, however at least from my perspective they do not exhibit the same duty of care themselves.
- Corporate and not-for-profit constitutions usually have provisions around qualifications of directors. This may include necessary skill sets, and what I usually advise boards is it should also include the necessary commitment of time and presence. Making sure you attend meetings, attend to the work you commit to and be present at meetings and when acting as a board member. I’m not sure that members of parliament, past and present, have necessarily given due care when reading and interpreting the Candidate Handbook else they would have self-questioned their eligibility status like they are all scurrying to do now. There has been the odd case where eligibility has been contested but not for s44(i) – they have been for s44(ii) on criminal convictions, s44(iii) on being bankrupt or insolvent, s44(iv) on office of profit under the crown, and s44(v) pecuniary interest in an agreement with the Commonwealth. These other clauses all seem very similar to various clauses in both the Corporations Act and the ACNC Act.
These are just a few topical lessons from the current Australian Constitution debacle. The next blog in the series will be on the ‘Veil of Ignorance’ theory and the lessons why the government is a bad example of good governance.
Stephen Barnes is the Principal Consultant at Byronvale Advisors.