Dual citizenship and eligibility to serve as a member of Parliament – the evolving story in Australia

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Elisa Arcioni & Helen Irving

University of Sydney Law School

This is an abbreviated version of the post originally published by the GLOBALCIT Citizenship Blog at: http://eudo-citizenship.eu/commentaries/citizenship-blog/1879-dual-citizenship-and-eligibility-to-serve-as-a-member-of-parliament-the-evolving-story-in-australia

A recent drama concerning the citizenship status of seven members of the Australian Parliament has drawn attention to the complex legal landscape surrounding multiple nationality, as well as the specific meaning of a provision of the Australian Constitution that governs eligibility to stand for, or serve in, the Australian Parliament. The provision – section 44 – sets out a range of grounds of ineligibility. Section 44(i) specifically provides that any person who

‘is under any acknowledgment 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 a 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.’

Additionally, under Australian legislation, candidates must be Australian citizens.

The meaning of section 44(i) was first explored in depth by the High Court of Australia in 1992, in the case of Sykes v Cleary (1992) 176 CLR 77. The case involved a challenge to the eligibility of several candidates in a 1992 by-election for the House of Representatives. Among them were two men, Bill Kardamitsis and John Delacretaz, who had been naturalized as Australians, but who had retained their original nationality (Greek and Swiss respectively).

The Court concluded that both Kardamitsis and Delacretaz were caught by the section, as they had not taken “all reasonable steps” to discharge or renounce their foreign nationality. The Court focused on the legal steps available under the relevant foreign law to renounce citizenship but also considered, to a degree, the substantive connection (or lack thereof) to the foreign country in question.

Seven years later, the Court decided the case of Sue v Hill (1999) 199 CLR 462, concerning a Senator who held dual Australian and British nationality at the time of her candidature.  The High Court re-affirmed its reasoning in Sykes v Cleary, and extended the category of ‘foreign power’ to Britain, Australia’s original sovereign.

And so, to the current drama in Australia. In July, a Senator from the Greens Party, Scott Ludlam, was alerted to the fact that, by birth in New Zealand, he held New Zealand citizenship. Ludlam thought naturalization in Australia meant he had renounced his other citizenship – he was wrong. Ludlam immediately resigned from the Senate. A second Greens Senator, Larissa Waters, became aware that, by accident of birth in Canada, she was a Canadian citizen. She, too, resigned. Waters had mistaken the state of the law in Canada and believed she was never a Canadian.

Echoing other critics, Malcolm Turnbull, the Prime Minister and leader of the (conservative) Liberal Party of Australia, described the Senators’ situation as evidence of ‘incredible sloppiness’ on their part.

Stones in glass houses! Within a month, three members of the government discovered they too were dual nationals – all born in Australia and all from the National Party with which the Liberal Party governs in coalition. First, Senator Matt Canavan, a Minister of State. It came to light that, unbeknownst to Canavan, he was an Italian citizen by descent through his maternal grandparents. Canavan did not resign from Parliament, but stepped down from Cabinet. Then, the leader of the National Party and Deputy Prime Minister, Barnaby Joyce, discovered he was a New Zealand citizen by descent through his father. Third was Deputy Leader of the National Party Senator, Fiona Nash, a foreign citizen by descent, through her Scottish-born father. Neither Joyce nor Nash have resigned from the Parliament or the Ministry.

Two further Senators from minor parties revealed they held foreign citizenship. One Nation Party Senator Malcolm Roberts admitted to having been a British citizen. He was born in India to a Welsh father and Australian mother, moved to Australia as a child and was later registered under the then relevant law as an Australian citizen. Senator Nick Xenophon, of the Nick Xenophon Team Party, discovered he held a form of British citizenship by descent from his Cypriot-born father.

Several other members of Parliament have faced questions regarding their potential foreign nationality due to birth outside Australia (up to a further 23 members of Parliament may be implicated) or through descent from at least one foreign-born parent.

Under Australian law, the Parliament may refer questions concerning the qualification of MPs to the High Court, sitting as a Court of Disputed Returns. All seven MPs implicated to date have had their eligibility referred to the Court, which has scheduled a hearing for mid-October.

It appears that the MPs were foreign citizens at the time of their nomination and so, prima facie, ineligible to serve in the Parliament. While the holding in Sykes v Cleary might suggest that disqualification is a foregone conclusion for them all there are factual differences that complicate the precedential status of that case and suggest that further reasoning may be required.

Most significantly, in both Sykes v Cleary and Sue v Hill, all of the disqualified candidates were naturalized Australians. They clearly knew that they held or had previously held a foreign nationality. By contrast, Canavan, Waters, Joyce, Nash and Xenophon are natural-born Australians and were unaware of their foreign citizenship. Does section 44(i) disqualify natural-born Australians upon whom a foreign citizenship has been conferred without their consent, willingness, or even knowledge? How, if at all, could such a person take ‘reasonable steps’ to divest themselves of an unknown foreign citizenship in order to satisfy the ruling in Sykes v Cleary?

The words of s 44 include reference to ‘allegiance’ – a notoriously slippery concept, complicated today by Australia’s and the world’s recognition (however reluctant) of dual nationality and its growing reality in many countries. Allegiance is unlikely to be fully signified in 2017 by reference to the formality of a foreign country’s citizenship law.

To date, the Court has mostly confined its definition of ‘allegiance’ to the holding of citizenship under the relevant legislation, without regard to any substantive or demonstrative character. But the majority reasoning in Sykes v Cleary itself at least leaves open a consideration of a person’s connection to a foreign country as relevant to the interpretation of s 44(i). The dissenting judgments also offer food for judicial thought.

Regarding Australian-born dual citizens, Justice William Deane in dissent concluded that the clause should be read down: the whole of section 44 (i) should apply ‘only to cases where the relevant status, rights or privileges [of foreign citizenship] have been sought, accepted, asserted or acquiesced in by the person concerned.’

Justice Mary Gaudron, also in dissent, stated that the constitutional rights of Australians should not be determined by foreign law: ‘every consideration of public policy and common sense tells against the automatic recognition and application of foreign law as the sole determinant’ of such rights. What if, Justice Deane hypothesised, a foreign power decided to ‘disqualify the whole of the Australian Parliament by unilaterally conferring upon all of its members the rights and privileges of a citizen of that nation’? There must be limits, in other words, in treating unintended or unwanted foreign citizenship as genuine foreign allegiance.

The High Court of Australia is set to consider these questions regarding citizenship, allegiance and eligibility by the end of the year, but the broader debates around loyalty, dual citizenship and membership are certain to continue.

Many countries with common origins and legal systems to those of Australia do not, or no longer, prohibit dual nationals from serving in their national legislatures. The only way unequivocally for Australia to join such a group of nations is constitutional amendment following section 128 of the Constitution. Amendment requires, first, an Act of parliament, then a national referendum on the proposal, resulting in a majority of votes in favour across the nation, plus a majority in a majority of the (six) states. This is notoriously difficult. Only eight proposals out of a total of 44 have been successful, the last in 1977. Further, an amendment to s 44(i) is unlikely to be high on the agenda of the present Parliament in light of current debate centred on issues such as Indigenous constitutional recognition, whether Australia should become a republic, or (the non-constitutional) recognition of same-sex marriage.

For individual dual nationals, effectively renouncing foreign citizenship in order to stand as a parliamentary candidate, will, it seems, continue to be one of the necessary sacrifices required of those who seek, or even merely attempt, to serve as a representative in the Australian Parliament.

Elisa Arcioni is Senior Lecturer in The University of Sydney Law School: http://sydney.edu.au/law/about/people/profiles/elisa.arcioni.php

Helen Irving is Professor of Law in The University of Sydney Law School: http://sydney.edu.au/law/about/people/profiles/helen.irving.php