Section 44 (i) of the Constitution

22/8/2017

Vol 12, Issue 5

VIRGINIA HOLDENSON

This past month has seen our federal parliamentarians madly reading up on s44(i) of the Constitution and the cases of Sykes v Cleary and Sue v Hill, as they scramble to determine if they were legitimately elected to Parliament. As the list of potentially unlawfully elected MPs increases day by day, and the reasons and excuses become more bizarre and convoluted, Australians are looking to the High Court to provide some clarity on the matter.

Courtesy of Wikimedia Commons

The decision of the High Court will be vital, not only for us law students, but also as the legitimacy of the Turnbull Government is dependent on a favourable outcome. Irrespective however of the High Court’s decision, the question that will remain to be debated is whether Section 44(i) still has relevance and purpose in Australia today. This latest string of issues has reinvigorated the debate for reform of s44(i) of the Constitution. 2016 Census data reported that 49-percent of Australians had either been born overseas themselves or had one or both parents born overseas. Further statistics specifically relating to dual citizenship reported that in 2000, up to a quarter of Australians were dual citizens or eligible to become dual citizens. Proponents for reform argue that these statistics demonstrate that dual citizenship goes hand in hand with the diverse makeup of our society, and that requiring rescission of citizenship rights results in less reflective representation. However, having a parliament that is representative of society, whilst adhering to s44(i) of the Constitution, in the interests of securing the best possible future for all Australians, are not mutually exclusive.

In the late 1800's the idea of being a citizen of Australia or a citizen of New Zealand was incomprehensible. Our Constitution was drafted in such a way that Australia was part of a broader network of nations that made up the Commonwealth, with allegiance to the Crown. At such a time to have been born in New Zealand and subsequently be elected to Australian Federal Parliament did not require renunciation of any entitlements or privileges because New Zealand was not a foreign power and one was merely a British Subject. Amongst other reasons, the purpose of s44(i) was to ensure the interests of the Commonwealth were not in any way undermined by those who did not seek to advance the causes of the Commonwealth. But in a post-Australia Acts era, where the notion of the Commonwealth is merely something we all pay attention to every 4-years when the Commonwealth Games comes around, should we really care if someone is a dual citizen?

If anything, I think s44(i) is more important in today’s global, technologically interconnected economy than it has been ever before. Our federal politicians, particularly Ministers are making critical decisions in areas of defence, trade and external affairs; when they do so it is expected that the interests of Australians are at the forefront of their mind. Maintaining a strict adherence to section 44(i) is the only way to ensure that any appearance of bias against Australia in such a decision-making process is extinguished.

Many continue to claim that making an MP rescind their citizenship does not guarantee they will not have a bias towards that other country when making decisions. However, the expectation is not just that there be no actual bias, but also there be no appearance of bias, and in circumstances where an appearance of bias can be readily extinguished, that must be done.
Such a notion ought not be alien, similar practices are employed daily in the business world. A director who happens to sit on the board of directors of both a national telco and an institutional bank, would likely be required to step aside from a decision-making process by the telco when choosing which credit offering to accept. Unfortunately, unlike in the business world, an MP cannot indefinitely abstain from such critical decision making. Whilst we can never be sure of the factors that will influence any MP when making decisions, ensuring allegiance to Australia and only Australia via s44(i) of the Constitution is possible and is a tangible measure of an MP’s commitment to their duty to represent Australians above all others.

Finally, returning to the various MPs who have found themselves caught up in this mess, I would personally posit that the purported lack of knowledge by: Scott Ludlam, Larissa Waters, Matt Canavan, Barnaby Joyce, Fiona Nash and now Nick Xenophon of their dual citizenship*, is sufficient to provide Australians with comfort that decisions undertaken by these MPs were done so in accordance with their allegiance and commitment to Australia above any to New Zealand, Canada, Italy or Britain.

*Note: On the facts the same cannot be said for Malcolm Roberts.

Virginia Holdenson is a second-year JD student

The rest of this issue:

Axe grinder

21/8/2017 10:20:34 pm

The majority of commentary I have seen in the media has been bemoaning the existence of section 44, because its apparently an afront to multiculturalism and its concomitant open border "ideal". One hysterical article from the ABC even called for the Constitution to be abolished because its 'out of date'

Thank goodness our Constitution is as difficult to alter as it is. I don't imagine removing the prohibition on dual citizens serving in parliament will be approved through a referendum anytime soon. Those affronted by the notion of Australia as a sovereign nation will just have to suck it up for the forseeable future.

Dual Citizen

22/8/2017 07:42:50 pm

I can understand wanting to prevent dual citizens of countries that have substantively different values and interests being elected. Electing a North Korean dual citizen would obviously cause some concerns for defence. However, dual citizens of the UK, Canada and NZ, countries that have the same values and have the same head of state, should not be barred from election to parliament.

Shared Values ?

22/8/2017 09:59:05 pm

It is not about having the same values, as I am sure many of us can acknowledge the MPs caught up in this scenario were committed MPs who it seems lacked knowledge of their entitlements to dual citizenship.

However, the risk is if we allow dual citizenship as you suggest, is it fair to say a dual citizen is allowed in some circumstances where that nations shares the same values? And not in other situations where that nation does not? And who determines what nations share values with Australia and those that don't?

As the author suggest the best scenario is to surely ensure that all MPs are committed first and foremost to Australia and they remove any perception that they may favour another nation in their decision making, regardless of if that nation "shares values".

Amelia

23/8/2017 10:59:31 am

Great comment. For Dual Citizen it's okay to bias a 'shared value' country but not another one. A foreign allegiance is a foreign allegiance, no?

25/8/2017 07:23:24 pm

The countries with shared values plus the same head of state are pretty obvious (UK, Canada and NZ). For a long time, they would not have been regarded as 'foreign powers'. There's really not that much separating these countries other than geography and funny accents. Let me know if you would add any other Commonwealth realms to the list, I think you will find the others are very different economically and culturally and have insignificant dual citizen populations in Australia (https://en.wikipedia.org/wiki/Commonwealth_realm).

On a tangential point of curiosity, how did the UK's switch from 'non-foreign' to 'foreign' work? Were dual Brit-Aussies validly elected then at the unknown point (Sue v Hill couldn't pinpoint a date) of the UK becoming 'foreign', they were disqualified from sitting in parliament? It seems troubling that the government, if in control of both houses, could disqualify opposition parliamentarians just by passing an Act that changed the definition of 'foreign power'.

As Virginia points out, the major concerns are defence, trade and external affairs. Defence and external affairs interests are largely well-aligned. There could be minor conflicts in terms of trade. Maybe Barnaby won't fight as hard on FTAs to reduce tariffs on Chinese sheep imports from Australia because he wouldn't want to put NZ's shepherds at a competitive disadvantage. However, this bias doesn't seem that likely or significant. Also, as long as society is aware of Barnaby's interest, there would be more pressure on him to not do anything that could be perceived as biased.

In terms of perception, having citizenship really doesn't change the public's perception. Barnaby has been a Kiwi in our parliament for 12 years. Did anyone ever actually think he might be biased in favour of NZ? Does anyone actually think that society's perception of him has changed now that we know about it? I think someone born in NZ with a Kiwi accent but no Kiwi citizenship would still be perceived as way more biased than Barnaby. Further, I would think Barnaby is more likely biased by the fact he has a Kiwi mum who may have taught him to love NZ rather than the fact he happened to have citizenship. Doesn't Tony Abbott, who has given up his UK citizenship, seem more pro-UK than Barnaby is pro-Kiwi? Citizenship isn't really that significant in terms of either real or perceived bias. As Barnaby (and the other dual citizens) have proven, you can have dual citizenship without it changing anyone's perception of you at all.

Amelia, foreign allegiances are not and should not be treated equally. We treat foreign countries differently in terms of defence (e.g. Five Eyes) and trade (e.g. CERNZ). We also treat different foreign citizens very differently at the border.

Another interesting point is that I don't know if any other country has this type of 'foreign power' disqualification. Lots of countries allow dual citizens to be MPs, even the UK, so I'm not sure why we ended up with s44(i)
(http://www.independent.co.uk/news/uk/politics/how-to-apply-for-an-irish-passport-brexit-latest-news-mps-peers-a7336911.html).

Another point that people seem to forget is that it is not just about dual citizens. Even just having the right to get citizenship/PR or having the entitlement to the same rights and privileges as a citizen or 'subject' of another country bars you from parliament. According to Robert Angyal SC, this actually means no one is eligible because all Aussies have the right to be a 'subject' of NZ. This is an example of another absurdity in the rule. Other countries can grant or remove entitlements to their citizenship/PR at will (as NZ and Canada did) thereby determining who can be disqualified from Australian parliament.

Joke

23/8/2017 10:57:11 am

How about belonging to a country that is impossible to re-enter without a passport?

Imagine having all your Australian family live somewhere where, without a passport, you need to apply for a visa wait 6 mths, register yourself immediately upon landing, register every single night's accomodation, be constantly monitored, simply to visit your loved ones.

Passports are not about allegiances, they are usually about culture. I am not going to give up my original culture simply to assure non-migrants that I love and will serve Australia fully.

BTW my family v well connected to Aus parliament. Passports of individuals lucky enough to have two cultures are not the problem - it's big business being able to buy parliamentarians out on any issue they like.

Wake the hell up people

Joke on you

23/8/2017 11:24:13 am

Firstly, as these current cases have shown it isn't even about whether you have a foreign passport or not.

Secondly, culture can be maintained whilst simultaneously renouncing citizenship to a country where you have entitlements.

Did Sam Dastyari give up his Islamic religion and culture when he renounced his citizenship - NO he did not. We should not ask people to give up their culture and we aren't. What our Constitution asks and expects is that those in our federal parliament are aligned to Australia and its interests first and foremost and as the author suggests one of the easiest ways of doing this is by having them renouncing any foreign citizenship or entitlement to foreign citizenship - which would include giving up your foreign passport if you have one.

I sympatise that some counties are quite strict on travel by foreign nationals, and therefore if having a passport to that foreign country is that important to you then don't run for federal parliament.

How is this a joke on me?

24/8/2017 08:31:28 am

Um yeah even you, Joke On You, use foreign passport as a brief way to say foreign citizenship - get over yourself.

It is not possible to maintain one's culture without having the opportunity to live it any any chosen time.

From your comments, it's whit clear that you're not a dual citizen. You have never experienced belonging to another country and culture. You do not know what it's like to want to run for federal parliament - without the restrictions imposed upon me by bigots with single citizenship.

So I guess the joke truly is on me, that I moved to a country thinking I will be fully accepted, but I am not, due to the prejudice of UK-descendants.

Foreign allegiance is like an excuse for single citizenship people to say I'm a full Australian and you're not. Well that's not true.

All my life I've had single citizenship people immediately cold shoulder me when I say I was born elsewhere. As if - watch out, he's a bit of a traitor. It's that split second reaction that now has form and shape as a result of discussing s 44.

Like I wrote earlier, federal parliamentarians are heavily persuaded by foreign monetary interests. Why the sudden focus on the individuals identity?

Taking away my citizenship would be taking away part of my identity from me. Hasn't that happened enough here historically?

Joke 2.0

24/8/2017 09:18:24 am

Wondering if 'all travel' under federal parliament passport includes fleeing country in time of warfare?

You just don't get it

24/8/2017 11:56:27 am

If you want to be a federal parliamentarian you have to play by the rules - when people move to Australia and become citizens they sign up to our constitution, which is clear in that dual citizens incapable of being elected to federal parliament. If you want the rules to change push for a referendum.

Fact is this requirement of rescinding dual citizenship is a tangible and easily measurable way to determine ones capacity for foreign influence. Rescinding citizenship doesn't necessarily prevent undue influence and bias but importantly it removes a perception of it.

It is also highly disrespectful for you to assume that lacking dual citizenship means I lack a connection to another country and culture. As a Chinese Australian when my parents become Australian citizens they were automatically incapable of being Chinese citizens - do I lack that culture and connection? No I don't it is incredibly important to me and your comments have displayed your ignorance and selfishness. Even if I was capable of having dual Chinese citizenship I value and respect the sentiments of this section of the constitution and would if I ran for federal parliament give this up in the spirit of being committed solely to Australia, acknowledging that I can maintain culture and connection without a passport.

Fu Manchurian candidate

24/8/2017 06:29:05 pm

@ HOW IS THIS A JOKE ON ME?

Your response demonstrates perfectly why section 44 should never be removed.

Your belligerent attitude towards Australia and Australians and your obvious devotion and preference for your country of birth over this one means you should never serve in a capacity where, when this nation's interest clash with the interests of the nation you were born in, you have power to sway things one way or the other.

Enough Jokes

19/9/2017 09:40:36 pm

I think everyone is aware that the Constitution is difficult to amend. That doesn't mean we shouldn't call out provisions that we think are unsuitable in today's world. It just means we may have to sober our expectations of change.

It may be that the 'easiest' (perhaps the laziest way, in more pejorative language) method of stopping individuals from voting in Parliament against Australia's interests and in a foreign power's interests is to prevent members having a dual citizenship. Whether it is necessary to bar those with 'rights and privileges' akin to a citizen, as per the actual words of s 44(i), is a further issue. Although I haven't studied the jurisprudence of s 44(i) cases closely, the provision is apparently construed quite narrowly, reflecting how the potential of s 44(i) to create overkill is acknowledged by the courts. Criticism of those decisions also potentially reflect how judges choose to perform linguistic backflips to make up for shortcomings in our Constitution, given how difficult it is to amend by referendum.

But it is worth considering that s 44(i) may be completely expendable, considering the globalised world we now live in, and given that not all other parliamentary democracies feel the need to have this type of provision.

Virigina made the analogy with company directors. Companies and corporate law have more nuanced conflict of interest doctrines, although, perhaps the stakes are lower as compared to national security. Nevertheless, a register of all parliamentary dual citizens/foreign entitlements, and a rule preventing those on the register from voting where there is a conflict as decided by the parliamentary house in question may appear to be a logical compromise, or at least worthy of consideration.

Those defending it seem to emphasise merely the 'appearance of bias', in recognition of its feeble ability to prevent actual bias. But the problem will only get more acute as a greater percentage of Australian citizens will hold dual citizenship. Maybe it's not worth such a hit to our representative democracy all to stop the appearance of bias, when a register could have everything out in the open.

Again, no one should hold their breath expecting change, but these things are worth discussing...

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Section 44 (i) of the Constitution

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