The Liberal senator who has spearheaded a six-month inquiry into how to fix the mess created by section 44 of the constitution has warned there is no easy fix as the Turnbull government ponders administrative options to fix the problems.
Linda Reynolds, who chairs the joint standing committee on electoral matters, has told Guardian Australia there are “no easy options” to fix the disqualifications in the constitution – meaning that only a referendum can finally resolve the citizenship crisis.
The committee will soon report on options to reform what she called the “profoundly undemocratic” section 44 of the constitution, which contains disqualifications on foreign citizens and public servants running for office.
Guardian Australia understands from government sources that the Coalition is keen to use administrative changes to resolve the crisis without resorting to a referendum.
But Reynolds has said it would be inappropriate for the Australian Electoral Commission to gain new powers to prevent dual citizens from running for parliament.
In the wake of the bombshell citizenship seven high court decision, Malcolm Turnbull said he wanted the electoral committee to consider “how the electoral laws and practices could be changed so as to minimise the risk of candidates being in breach of section 44”.
Constitutional expert Anne Twomey said that without a referendum the best parliament could do would be to legislate “to alert people to the problem, for example, to make it quite clear on a nomination form that if they or their parents or grandparents were born overseas they are under an obligation to obtain advice”.
In evidence to the electoral committee, solutions were canvassed including a referendum to remove the disqualifications or allow parliament to set them, to replace the ban with an oath of allegiance or to empower the AEC to check candidates were eligible when they nominated.
Reynolds told Guardian Australia that if the high court – which is due to deliver judgment on Wednesday – accepts Katy Gallagher’s defence that she took “all steps reasonably required” to renounce her British citizenship it would mitigate the ban on foreign citizens but would not get rid of the problem.
“My personal view after listening to all the evidence to the committee is the only way these problems will stop is via a referendum,” she said.
Reynolds said it was not the committee’s role to decide if foreign citizens should be eligible for parliament because it was “an issue for Australians to decide what are suitable qualifications and … disqualifications”.
Asked about a new AEC power to check candidates’ eligibility, Reynolds said: “From the evidence it is very clear there is no easy option to dealing with this.”
Reynolds said for public confidence the “person running the election process cannot and should never be the people who are standing in judgment of who is eligible to run as a candidate”.
“On principle it is an undemocratic concept, which is why disputes are referred to the high court.”
Reynolds said section 44 is “profoundly undemocratic” and “risks disenfranchising up to 50% of Australians” by preventing them from nominating for parliament.
When the inquiry started Reynolds said she thought it was “primarily a matter of citizenship and paperwork but the overwhelming evidence … is it is so much more than that”.
Reynolds noted that disqualifications operate on the nomination date and warned that political actors with “nefarious intention” could dispute the election of MPs without disqualifications on the basis the candidates who directed preferences to them were not eligible.
The deputy chair of Jscem, Labor MP Andrew Giles, told Guardian Australia that the uncertainty over eligibility “can’t continue” as it was “compounding frustrations with the state of politics today”.
“It’s a collective responsibility to resolve this uncertainty, and also to make sure that all Australians can have their say in what restrictions should apply to running for election to our national parliament.”
At a hearing in December, the AEC commissioner Tom Rogers noted an earlier parliamentary inquiry in 1997 had concluded the AEC should have “no role” advising candidates if they were eligible to run.
He warned “compliance with section 44 is the responsibility of the candidate – and the candidate alone”.
Rogers said given the short timeframe and the number of candidates – 1,625 at the 2016 federal election – it would be “virtually impossible for the AEC to check all nominations to ensure compliance with section 44”.
Rogers also argued the AEC’s reputation is “founded on its apolitical nature” but determinations of ineligibility would “risk perceptions of political partisanship”.