Australian dual citizenship rules could distort composition of Parliament

Australia’s late 19^th-century constitutional bar on duel citizenships, combined with more modern 20^th and 21^st century national approaches to the notion of citizenship, threatens to make the Australian Parliament increasingly unrepresentative of its electorate.

 

[1900:] “Any person who … Is under any acknowledgement 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 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.” – Constitution of the Commonwealth of Australia, paragraph 44(i).

[1998:] “The Committee [on Legal and Constitutional Affairs] recommended that a referendum be held to … delete subsection 44(i) … insert a new provision requiring candidates and members of parliament to be Australian citizens …[and] empower parliament to enact legislation determining the grounds for disqualification.”

 

As Australia enters the fifth week of its parliamentary citizenship crisis, it is useful to survey not only the citizenship laws of overseas nations, but to note that other nations’ laws are not as hung up on the implications of dual citizenship as are those of Australia.

Nineteen years ago a Committee of Parliament examined this very issue and recommended constitutional reform to address the problem. If the Committee’s recommendations had been acted upon, the eligibility fiasco of the past month would not have occurred.

This post will review the legal positions in Great Britain and New Zealand (the two nations which have figured most frequently in the recent Australian legal crisis) as well as the comparative position in Canada. Obviously this is a limited selection to survey. Needless to say, Australia is now home to citizens with family origins in virtually every nation on earth.

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In Great Britain, running for election to the UK House of Commons is open to any person who is a citizen of Britain, a citizen of any other Commonwealth country (including Australia and 52 other nations) or a citizen of the Republic of Ireland. There is no bar to election based on holding dual citizenships.

In addition, British law actually maintains a legal notion of Commonwealth citizenship, adding to simple British citizenship categories such as British Overseas Citizen, British Overseas Territories Citizen, British National (Overseas), and even the old notion of British Subject, as well as granting citizenship to nationals of dozens of former Empire countries as specified by British legislation.

The British Empire – apparently long dissolved – lives on in such arrangements, and many Australians with parents with connections from any of these British or British-recognised nations and territories will still have their eligibility to be elected to Australia’s Parliament affected by their family’s past.

South Australian Senator Nick Xenophon, for example, is currently in constitutional trouble because his Greek Cypriot father lived in British-occupied Cyprus before the island became independent in 1960. Senator Xenophon’s father – apparently motivated by actual opposition to British rule – departed Cyprus in 1951 and migrated to Australia. But it seems that British law still recognizes his son, born in Australia in 1959, as holding a class of British citizenship by descent, potentially invalidating the election of one of the Senate’s key figures, who has been decisively chosen to serve in the Senate by South Australian voters on three occasions over a decade and a half.

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In New Zealand, until 1949 all residents were simply ‘British subjects’. Only in that year was a separate legal concept of Kiwi citizenship established by legislation of the New Zealand Parliament.

The law was revised in 1977 and also in 2005.

New Zealand law confers citizenship on all first-generation descendants of its citizens, including the many with parents who migrated to Australia. Australia’s Deputy Prime Minister Barnaby Joyce falls into this category.

New Zealand citizens living long-term in Great Britain are allowed to vote in elections for – and even be elected to – the UK House of Commons. Indeed, under UK law they have a legal duty to enroll to vote while living in Britain. NZ citizens have a similar right to vote in several other Commonwealth countries while they are long-term residents there.

Only New Zealand citizens may be elected to the nation’s House of Representatives, but there is no initial candidacy limitation relating to dual citizenships of other nations. All NZ citizens can run for election to their House of Representatives, regardless of any other citizenships they hold.

However if a sitting member of the NZ Parliament actively takes up citizenship of another country (other than as a result of marriage), or willingly enters into some other form of foreign allegiance or office-holding, they automatically cease to be a New Zealand MP.

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Canada requires candidates for election to its House of Commons to be Canadian citizens, but like New Zealand does not impose any bar on persons being dual citizens of other countries.

Since just the 2000 elections 82 foreign-born Canadian citizens have been elected to their House of Commons, including 14 MPs born in India, 7 born in the United States, 10 MPs born in the United Kingdom, 4 born in Lebanon and many others born in countries on every continent.

Going back as early as 1909, three Australian-born candidates were elected the Canadian House of Commons during the 20^th century.

More significantly for the present Australian parliamentary situation, Canada revised its citizenship laws in 2009, redefining the grant of Canadian citizenship by descent to automatically include the children of Canadian citizens (so long as at least one parent was a citizen by birth). The grant of citizenship is automatic under Canadian law.

This raises the possibility that an Australian parliamentary candidate or elected member with a Canadian parent, who prior to 2009 ensured that they had renounced Canadian citizenship to satisfy Australian requirements, may have had Canadian citizenship re-granted to them through the legislation enacted in April 2009.

That re-grant, strictly speaking, could render void an affected sitting member’s seat in the Australian Parliament.

The example goes to show that under strict readings of the Australian rule, changes in the laws of other countries can automatically impact Australian parliamentary status.

It is possible that Australia’s High Court might conclude that the constitutional text is not to be read with absolute strictness, and that changes in foreign law, which could not have been anticipated at the time of nomination or election, would only render a sitting MP (or a candidate during an election period) if some positive step to take up the citizenship.

But such a notion involves something more than the law that was found in the Sykes v Cleary and Sue v Hill judgments, where foreign-law citizenship entitlements had implications for the purposes of Australian law even where no positive action was taken by the candidate.

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This brief and limited survey covers just three nations with close historical and cultural links to Australia. Issues relating to citizenships of other nations may be more complex.

But what emerges even from the links with these closely connected nations is that Australia is the only Commonwealth nation which has a strictly limiting constitutional rule baring many of its citizens from election to parliament unless they sacrifice any citizenship of other nations.

This legal limit has created the major opportunity for candidate errors that is currently roiling the Parliament. But the issue is about more than candidates making nomination process errors.

Above and beyond the clerical missteps of serving MPs, what are these Australian constitutional rules doing to the present and future composition of the Parliament?

Most immediately, the current rules are forcing Parliament to be made up of individuals who, if they possess personal links to other nations, are obliged to abandon them.

This means that even though Australia is a diverse nation made up of people with a variety of degrees of recent family linkage to other places in the world, in general the more recently-arrived families and individuals will overall be less well represented in the make-up of the national Parliament. The result is a distortion of the ideal that the Parliament mirrors the electorate.

The parliaments of the other nations cited seem to be operating perfectly well without adverse effect from the presence of dual nationality members sitting in the UK or Canadian Houses of Commons or the New Zealand House of Representatives.

This indicates that a strictly Westphalian, distrusting approach to foreign linkages being a threat to Australia is much less relevant in the modern world.

Other subtler impacts of the current Australian legal position also threaten to further distort the composition and the operation of the Parliament.

In regard to fair and equal election-time competition for office, the current rules specifically discriminate against candidates born overseas or from recently-migrated families, who are placed under electoral burdens not suffered by candidates from more long-resident families.

Under the current Australian law candidates with foreign connections must undertake steps to identify all their foreign citizenships. In some cases this will be simple, but in others more costly, time-consuming and uncertain.

In addition, such candidates must give up a legal status that may have real value to them and their families – a penalty not suffered by unencumbered candidates. The penalty must be paid even by the many hundreds of unsuccessful candidates who nominate.

There is also the prospect that during the crucial few weeks of an election campaign, foreign-linked candidates could in future be hit by eligibility attacks – or even strategic litigation – purely for the purpose of disrupting their campaigns.

Perhaps more significantly, the recent fiasco demonstrates that even where such candidates prevail, they may never completely achieve legal certainty. Even after election to Parliament by their fellow Australians, a hint of vulnerability over their place in may linger on, impossible to resolve short of costly High Court litigation.

That vulnerability may never end up manifesting as actual ineligibility after judicial examination, but even the threat of challenging a member of Parliament’s status could impact on the member or senator’s freedom of parliamentary action.

It is clear in recent days that accusations of parliamentary ineligibility, even based on no more than vague indications, are being wielded as a political attack tool in day-to-day politics.

For a sitting member or senator to be under a cloud as to their status is no minor matter. Their certainty of continued service in Parliament is directly threatened, undermining the ongoing reality of their parliamentary work and their ability to represent their electors, negotiate, reach policy compromises, make ongoing parliamentary commitments, and seek and maintain leadership positions.

Such members are rendered more politically and personally vulnerable to improper threats and pressures by other political actors, are prevented from going about their work with proper confidence, and are unreasonable maligned in the wider community. They will also have a diminished capacity to attract and retain staff.

Moreover such potentialities could over time feed back into the selection processes for future candidates.

As political parties or individual candidates count the increased costs of preparing foreign-linked Australian citizens for election nominations, the prospect of greater uncertainty and legal costs may chill the freedom of individuals to nominate, and may affect their opportunities to succeed on their merits during party preselection processes.

Parties, understandably enough, will be more wary of the legal complications that may arise from preselecting foreign-linked candidates.

This fundamentally distorts the freedom of every Australian citizen – voters as much as candidates – to participate in the process of electing the Parliament, and in turn it distorts the composition of Parliament, making it inadequately representative of the Australian electorate as a whole.

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The take-home message from all of this is that Australia is an outlier from the general position of Commonwealth nations, which are taking a fairly open approach to the entitlements of each other’s citizens to vote and even be elected to their parliaments.

Almost all nations (Great Britain being the main exception) at least require actual national citizenship as a condition of parliamentary election. But Australia goes further in actively excluding from its Parliament Australian citizens who are also dual citizens, even where those other citizenships are those of the other, more easy-going Commonwealth realms.

This situation is clearly a mis-match with Australia’s history as an immigrant nation, its diverse cultural character, and its national interest in being a nation with strong links to other nations.

The nation’s High Court cannot address this situation alone; there is only so far the Court could stray from black-letter interpretation of the Constitution’s clear words to address either the practicality or the doubtful policy merit of the existing provisions.

The issue will require a vigorous constitutional debate and ultimately constitutional amendment if it is to be properly sorted out.

 

Parliamentary examination of section 44

According to the online edition of the authoritative Odgers’ Australian Senate Practice:

“The disqualifications contained in section 44 were examined in some detail by the Senate Standing Committee on Constitutional and Legal Affairs in 1981 (report on the Constitutional Qualifications of Members of Parliament, PP 131/1981). The Committee found the relevant provisions to be anomalous and out of date and recommended that they be comprehensively changed. This report, however, was written before most of the judgments of the Court of Disputed Returns to which reference has been made, and those judgments have considerably clarified the meaning and application of those provisions.”

More recently, in 1998 – a few years after the High Court’s Sykes v Cleary decision – Parliament’s Standing Committee on Legal and Constitutional Affairs again examined section 44. The 1998 Report commented that:

“The language in which the principle [that members of Parliament must have clear and undivided loyalty to Australia] is expressed is archaic. The provision was drafted before the concept of Australian citizenship developed and the scope of the subsection is uncertain. …

The exclusion from federal parliament of persons who have dual or multiple citizenship is problematic. First, there is a question of whether the many Australian citizens who are dual citizens should be excluded from the political process. Second, the steps necessary to renounce other citizenships are those embodied in the relevant foreign law. They may be cumbersome or uncertain. The process may also be irreversible. Those who renounce a foreign citizenship in order to nominate and then fail to get elected may be considered to have paid a high price for participation in the political. …

The Committee concludes that the community would be better served if the current provision were to be deleted and the constitution were to focus on the primacy of Australian citizenship in the parliamentary system. The Committee also considers that safeguards to prevent divided loyalty or foreign influence should be included in legislation and considers that the constitution should be amended to provide the parliament with power to enact the necessary legislation.”

The Committee recommended that a referendum be held to make the following changes to the Constitution:

• delete subsection 44(i)
• insert a new provision requiring candidates and members of parliament to be Australian citizens
• empower parliament to enact legislation determining the grounds for disqualification.

 

Postscript

The policy behind section 44 of the Australian Constitution was examined on Monday by four leading constitutional scholars from the University of Melbourne.

Related reports:

Barrister Robert Angyal SC, How The High Court Can Bring Australia’s Dual-Citizenship Debacle To An End, Huffington Post, 21 August.