Vol 12, Issue 5
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.
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
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