Form over Substance? Foreign Citizenship and the Australian Parliament

Elisa Arcioni & Helen Irving

University of Sydney Law School

As foreshadowed in our earlier post, the High Court of Australia has now delivered its judgment in a case concerning the eligibility of dual nationals to serve in the Australian parliament. At issue was section 44(i) of Australia’s Constitution which renders ineligible any person who (in addition to being an Australian citizen) is a citizen of a ‘foreign power’. Seven federal parliamentarians faced the Court. Some of them denied that they were foreign citizens and some conceded that they were; most had acquired their non-Australian citizenship by descent and had no knowledge of it before the case arose; all had since taken steps to renounce it. In the event, five (including the Deputy Prime Minister) were ruled ineligible to have been elected. The ruling was a shock to the government. The political and legal ramifications are yet to play out in full, but the saga is far from concluded. Less than a week after the Court’s decision, yet another member of the government (President of the Senate, Stephen Parry) revealed that he too held foreign citizenship and resigned from parliament. He may not be the last.

In its relatively short, speedy and unanimous judgment (‘Re Canavan’), delivered on 27 October, the High Court affirmed its approach in the 1992 case Sykes v Cleary. The basic rule, drawn from that case, is that foreign citizenship for the purpose of section 44(i) is to be determined by the law of the relevant country. That is to say, it is foreign law, not Australian recognition of that law, that will (with rare exceptions) be determinative. The Court made explicit that there is no ‘mental element’ to the inquiry; a person’s knowledge of, or subjective identification with, their non-Australian citizenship are irrelevant, as is a person’s self-identification as solely Australian. The case also affirmed that the purpose of s 44(i) is to ensure that members of parliament do not have ‘split allegiance’. The Court rejected the argument that, without knowledge of holding foreign citizenship, there could be no conflicting allegiance.

This approach, the Court concluded, would offer stability and would best reflect the ‘ordinary and natural’ or ‘plain’ meaning of the text. However, notwithstanding its commitment to textualism, the Court also relied on free-standing implications to qualify the literal meaning of the text. It identified what it called a ‘constitutional imperative’ (arising by implication from other provisions of the Constitution). Australians should not be ‘irremediably disqualified’ from becoming members of parliament: ‘They have the entitlement to participate in the representative government which the Constitution establishes’. This, the Court concluded, ‘is the evident intention of the Constitution.’

So, foreign law will not always be determinative. Exceptions would include a law that did not permit renunciation, or a process of renunciation that involved ‘risks to person or property’. Here, the Court acknowledged a second non-textual implication, affirming the Sykes v Cleary reasoning that in such cases a person may be eligible to serve, despite holding a non-Australian citizenship, so long as he or she had taken all ‘reasonable steps’ to renounce it.

The reference to the ‘constitutional imperative’ is a significant and surprising element. It appears to support the idea of an individual right to stand for parliament. Until now, the protections arising by implication from the constitutional system for representative government (whether the right to vote, or the freedom of political communication) have been framed explicitly by the Court as not being individual rights, although their application may have the same effect as such a right. Perhaps this new ‘right’ is yet another hybrid creature?

The Court’s application of its approach to the facts of the five disqualified was straightforward. Three minor party senators (Scott Ludlam, Larissa Waters and Malcolm Roberts) were born overseas, in jurisdictions where birth automatically conferred citizenship. Two government members (Deputy Prime Minister Barnaby Joyce and Senator Fiona Nash), had fathers who were born overseas in countries the law of which automatically conferred citizenship upon their children by descent.

The reasoning for the two surviving senators (both Australian-born) is more interesting.

The Court was not convinced that Senator Matthew Canavan in fact held foreign nationality. The identification of the factual basis for his potential Italian citizenship changed over the course of the proceedings. Ultimately, it transpired that Canavan had access to Italian citizenship through his mother because of the retrospective application of Italian law which in 1983 removed gender discrimination in conferral of citizenship by descent. The Court relied upon an expert report regarding Italian law and administrative practice, without any contradictor with respect to its contents. The court noted ‘the potential for Italian citizenship by descent to extend indefinitely’ and therefore held that the ‘reasonable view of Italian law is that it requires the taking of … positive steps … as conditions precedent to citizenship.’ That assumption effectively gave Canavan the benefit of the doubt. He remains in the parliament.

Senator Nick Xenophon was born of Greek and Cypriot parents. He had renounced his Greek and Cypriot citizenships (by descent) prior to nomination for election. His father, however, also held a type of British nationality (‘British Overseas Citizen’) which was transmitted to the senator by descent. In form it was a foreign citizenship. However, it did not confer a right of entry or abode in Britain. The Court therefore did not recognise it as real citizenship for the purpose of s 44(i), as the right of abode, it said, is ‘one of the main characteristics of a national under international law’. This is a welcome conclusion, but, to our knowledge, the state of international law in this regard is not as clear as the Court suggests. The reasoning is also a hint that the Court may be willing to consider substantive arguments regarding indicators of membership.

If so, this will be at odds with the case law to date in which membership through citizenship, or exclusion through alienage, have been held to depend simply on the holding of formal citizenship, as determined by the Australian Citizenship Act. ‘Allegiance’ has been signified similarly, through formal citizenship alone. So, an Australian who held substantive allegiance to a foreign country, yet was not a citizen of that country, would be eligible to serve in parliament, yet a person with no connection to a foreign country but who was a citizen by operation of its law, will be  deemed ineligible. The Court identifies the purpose of s 44(i) as avoiding ‘split allegiance’, but its application effectively renders it without any substantive content.

The Court’s reliance on the earlier case law, the unanimity of the decision and the clear statement regarding the irrelevance of a mental element are reassuring for many. However, the decision and the very existence of s 44(i) do not sit well with all in the Australian community. Since the earlier case, legislation has been changed to allow Australians to naturalise in foreign citizenship without ceasing to be Australian – indicative of acceptance of dual nationality. Nearly half of all Australians were either born overseas or have at least one overseas-born parent. A large proportion of the Australian population are therefore either already dual nationals or eligible for foreign citizenship. The High Court has simply made clear that renouncing non-Australian citizenship is mandatory if one wants to be a representative of ‘the people’, even the very multicultural people, of Australia.

Dr Elisa Arcioni is a Senior Lecturer in The University of Sydney Law School. Prof. Helen Irving is Professor of Law in The University of Sydney Law School.