Australian parliamentarians stumped by dual citizenship rule
A strange affliction has taken over parliament in Australia recently as MP after MP has discovered that they hold not just one, but sometimes two or three citizenships from various countries around the world. As a country of immigrants, it is surprising that these issues of citizenship have not arisen sooner.
Background to Section 44
Section 44(i) of the Australian constitution - which was written before Australian citizenship existed - bans parliamentarians with dual citizenship from holding or running for office on the grounds that persons who are subjects or citizens of foreign powers may not sit in Australia's parliament. Several of the politicians involved in this issue inherited citizenship passively from their parents. As section 44 prohibits parliamentarians from having dual citizenship, those members took the step of renouncing their other citizenship or citizenships as a way of avoiding the issue. This move was met with varying degrees of success due to bureaucracy, failure to meet deadlines and complicated foreign immigration laws. As a result, seven cases were put before the high court in Australia to be decided. The issue that arose to be determined by the court was whether section 44 the constitution renders MPs ineligible because they were foreign citizens on the nomination date of the 2016 election and was of some political importance as Malcolm Turnbull’s government was holding its majority in the House of Representatives by a slim margin.A Tenuous Majority
Barnaby Joyce was the only lower house parliamentarian caught up in the maelstrom; all of the others were members of the Senate. Joyce is a leader of the National party and the Deputy Prime Minister. He was elected as Queensland senator in 2004 and as the member of parliament for the New South Wales seat of New England in 2013. While Joyce was born in Australia, he received New Zealand citizenship through descent from his New Zealand-born father, a fact he claims to have only discovered in August 2017.
Joyce has since renounced his New Zealand citizenship and has fought to be deemed eligible on the grounds that as he was unaware of the citizenship issue, he could not be in breach of section 44 as if the purpose of the provision was to prevent split allegiances, then a person could not have a split allegiance if they did not know they were a citizen of a foreign country.
The high court considered that while the first part of the provision, concerning the “acknowledgement of allegiance” required a positive act and knowledge, the second part concerning being a citizen of a foreign power was merely a matter of legal status. That status was determined by foreign law and gave rise to legal duties. If a person has such a status, then with one exception, he or she cannot be chosen as a member of parliament until that citizenship has been renounced by following the steps required by the foreign law, the only exception being where a foreign country does not allow its citizenship to be renounced.
The high court accepted that the constitution, in a separate section, expressly permits Australian citizens to become members of parliament and that it was not intended that they be irremediably prevented from participating in Australia’s system of representative government. In such a case, it is enough that a person has taken all steps that are reasonably required by the foreign law to renounce his or her citizenship where they are within his or her power.
The court’s unanimous decision to uphold a strict reading of the constitutional disqualification of foreign citizens stripped the Turnbull government of its one-seat majority in the House of Representatives and meant a by-election would have to be held in New England to determine whether the one seat lower house majority would stand. That vote was won by Joyce on December 2 and he will return to the lower house.
Joyce has since renounced his New Zealand citizenship and has fought to be deemed eligible on the grounds that as he was unaware of the citizenship issue, he could not be in breach of section 44 as if the purpose of the provision was to prevent split allegiances, then a person could not have a split allegiance if they did not know they were a citizen of a foreign country.
A Strict Interpretation
On October 27, the court handed down its decision and placed a strict interpretation on section 44 by declaring that the disqualification provisions in the constitution must be strictly applied.The high court considered that while the first part of the provision, concerning the “acknowledgement of allegiance” required a positive act and knowledge, the second part concerning being a citizen of a foreign power was merely a matter of legal status. That status was determined by foreign law and gave rise to legal duties. If a person has such a status, then with one exception, he or she cannot be chosen as a member of parliament until that citizenship has been renounced by following the steps required by the foreign law, the only exception being where a foreign country does not allow its citizenship to be renounced.
The high court accepted that the constitution, in a separate section, expressly permits Australian citizens to become members of parliament and that it was not intended that they be irremediably prevented from participating in Australia’s system of representative government. In such a case, it is enough that a person has taken all steps that are reasonably required by the foreign law to renounce his or her citizenship where they are within his or her power.
The court’s unanimous decision to uphold a strict reading of the constitutional disqualification of foreign citizens stripped the Turnbull government of its one-seat majority in the House of Representatives and meant a by-election would have to be held in New England to determine whether the one seat lower house majority would stand. That vote was won by Joyce on December 2 and he will return to the lower house.
