When Labor officials eyed one of Sydney's most dedicated medicos for the marginal seat of Macarthur in the 2016 election, they faced a curious hurdle.
In their sights was the widely recognised paediatrician, Mike Freelander. Dr Freelander was candidate-gold: beloved by his patients, and able to boast real-world experience way beyond the normal political template. The 62-year-old had seen thousands of babies and their families in western Sydney, and was an outspoken advocate for public hospitals.
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But therein lay the problem. Under the arcane requirements of section 44 of the constitution, his employment at Campbelltown Hospital meant he was unable to even nominate for Parliament without first severing his employment ties - effectively abandoning his patients, as he saw it. So reluctant was he that he even offered to keep seeing them unpaid, however this could be legally dubious also.
With a margin of 3.3 per cent, Liberal-held Macarthur was no certainty either, having swung with the governing party in every election since its creation in 1949, right through to 2004.
In the past tumultuous days, three senators have fallen prey to section 44, albeit in relation to its rigid dual citizenship prohibition. While it states that dual nationals cannot seek office, section 44 also prohibits nominations from anyone who "...holds any office of profit under the Crown ... or has any direct or indirect pecuniary interest in any agreement with the Public Service of the Commonwealth...".
When news broke on Tuesday evening of the unwitting Italian citizenship of Matt Canavan, critics were quick to attack anyone suggesting section 44 was out of sync with contemporary Australia. Stop blaming the constitution, railed twitterers salivating at the Coalition's exquisite plight. Several also defended its rigidity declaring there was nothing wrong with demanding sole allegiance to Australia, while scoffing at suggestions that a provision written in the 1890s ill-befits a nations where half of its citizens were either born overseas or have an overseas-born parent.
Freelander's electoral punt paid off. But his case shows how the rules could easily dissuade the very best candidates from seeking public office.
Just like the dual citizenship rule as currently interpreted, the requirement on public sector employees to quit their careers completely, merely to run for parliament, limits the field and works against the national interest.
![Under constitutional requirements, paediatrician Michael Freelander had to resign from his position in a public hospital ...](http://web.archive.org./web/20170728040937im_/https://www.fairfaxstatic.com.au/content/dam/images/g/x/j/o/f/j/image.related.articleLeadwide.620x349.gxjwe5.png/1501207499146.jpg)
Bill Shorten is expected to address Labor's attitude to constitutional reform in a speech this weekend, with suggestions that fixing section 44 may be canvassed. But insiders know such constitutional amendment would be near impossible and warn that it would be fourth cab off the rank anyway after more pressing challenges: Indigenous recognition, the republic, and fixed four-year terms.
It seems the best we can hope for is a pragmatic modernism in the High Court's interpretation of a provision that was no doubt well-intentioned yet is now needlessly punitive.
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