Split Allegiance or Mere Oversight?
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An interesting (if not altogether important) Australian political/legal issue will play out over the next few days. It concerns several federal parliamentarians, who in the past month discovered that they may hold dual citizenship, and consequently could be ineligible to sit in parliament.
Who is eligible to be, and disqualified from becoming, a member of the House of Representatives or of the Senate is spelt out by the Australian Constitution and by a Commonwealth Act of Parliament.
In order to be nominated to stand for election to federal parliament, section 163 of the Commonwealth Electoral Act 1918 requires a person to be:
a) at least 18 years old,
b) an Australian citizen and
c) a registered voter, entitled to vote, or qualified to vote at a federal election.
Section 44 of the Australian Constitution lists five categories of people who are incapable of being chosen or of sitting as a member of either house of federal parliament. They are, people who:
i) Owe allegiance to a foreign power,
ii) Have been convicted of an offence punishable by one or more years of imprisonment,
iii) Are undischarged bankrupts, or insolvent,
iv) Hold an office of profit under the crown, or
v) Have a financial interest in an agreement with the government.
In addition, the Constitution disqualifies those who at the time of their nomination are members of a state or territory parliament, and those who at the time nominations close have nominated for two elections.
The High Court’s interpretation of ineligibility due to allegiance to a foreign power, has made political candidates ineligible to nominate for election and sit in parliament, if at the time of their nomination for election they held dual citizenship.
The late 19th century wording of that ground of ineligibility refers in section 44(1) to a 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 of a foreign power.’
Prior decisions on this issue provide some guide as to how the Court may deal with these matters when it considers the referrals from parliaments in a few days time.
In the sectarian late 1940s and early 1950s the Court declined to find that Catholic politicians were ineligible to sit because they owed allegiance to a foreign power ie. Vatican City State. The Court observed that to do so would exclude all Catholics from parliament, and would constitute an ‘imposition of a religious test for public office’ in breach of s116 of the Constitution..
In 1992 the Court held that assuming to be an Australian citizen was in itself insufficient to shed foreign citizenship. The Court also held that as some foreign powers do not allow citizenship to be renounced, all that was required was for a person to take all reasonable steps under the foreign law to divest of any conflicting allegiance.
In 1999 the High Court ruled that holding Australian and British citizenship constituted dual citizenship and an allegiance to a foreign power, as since 1984 Britain was a foreign power, and made a parliamentarian ineligible to sit in parliament.
Having considered the relevant law and gained some idea of how it might be interpreted and applied by the High Court, should enable a more informed assessment to be made of the individual circumstances of the politicians whose citizenship credentials have been queried and will be considered by the High Court.
a) Greens co-deputy leader, Senator Scott Ludlam discovered in July 2017 that he is a New Zealand citizen. He was born in New Zealand and moved to Australia at the age of age of eight. As a teenager he became an Australian citizen through naturalisation. He says that he assumed that the naturalisation cancelled his New Zealand citizenship. He resigned from parliament in July 2017.
b) Greens co-deputy leader, Senator Larissa Waters resigned 4 days after her colleague as she discovered that she held Canadian citizenship. She was born in Canada to Australian parents who moved back to Australia shortly after her birth. She says that she believed that in order to gain Canadian citizenship she would have had to take active steps before she was 21 years of age.
c) Liberal National Party Senator Matthew Canavan resigned from his position as Minister for Resources and Northern Australia (but not from parliament) after discovering that Italy considered him to be an Italian citizen. The Australian born Senator says that following the resignations of the Greens co- deputy leaders, his mother informed him that in 2006 she had registered him as an Italian resident abroad, without his knowledge and consent.
d) Pauline Hanson’s One Australia Party Senator Malcolm Roberts’ eligibility to sit as a member of parliament has been questioned due to the emergence of documents indicating that he was a British citizen at the age of 19. He was born in India to an Australian mother and a British father. He denies being an Indian or British citizen, and says that just in case he had been a British citizen he took reasonable steps to renounce his British citizenship before he nominated for election to parliament. However, he concedes that Britain only confirmed his renunciation some five months after his election. It is alleged that under British law a citizenship is only revoked on confirmation by the UK Home Office.
e) Leader of the National Party of Australia and Deputy Prime Minister Barnaby Joyce was informed by the New Zealand government that he was deemed to be a New Zealand citizen by virtue of his father being a New Zealander. He was born in Australia and says he never had any idea that he might be a New Zealand citizen.
All of these cases have been referred to the High Court, to be considered by that Court sitting as a Court of Disputed Returns (the Court that determines issues surrounding the election of members of parliament).
In an apparent attempt at payback, the government subsequently questioned the citizenship of four Labour Party members of the House of Representatives.
a) Maria Vamvakinou MP, was born a Greek citizen. She advised that she formally renounced her Greek citizenship and received written acknowledgment in August 2000, prior to her nomination.
b) Tony Zappia MP, was born an Italian citizen. He advised that he ceased being an Italian citizen in December 1958, and that his renunciation of Italian citizenship was confirmed in 2004, prior to his election.
c) Justine Keay MP was born to a British father. She states that in May 2016 she completed a renunciation of British citizenship form. Initially she stated that she received confirmation of that application from the UK Home Office before her nomination. However, she later revised this statement, advising that she only received confirmation one week after the election. As her citizenship was not confirmed until after the 2016 election, her citizenship credentials continue to be questioned by the government.
d) Susan Lamb MP was born to a British father. She states that on being advised that she was entitled to British citizenship through her father, she took all necessary steps to renounce her citizenship. She received confirmation of receipt of her declaration of renunciation prior to her nomination in 2016
What little we know about each politician suggests that some of the issues the High Court will have to decide may include:
a) What if prior to their nomination candidates do all they can to renounce their foreign citizenship, but their renunciation is only finalised after their election?
b) What if a candidate didn’t enquire into their possible dual citizenship because they believed that their foreign citizenship had lapsed at some time prior to their nomination?
c) What if unbeknownst to a candidate, by virtue of a parent’s foreign citizenship, or the country of their birth, they are deemed to be a citizen of a foreign country?
d) What if as an adult, a political candidate acquired another citizenship without their knowledge or consent.
The significance of all 7 High Court judges sitting on this occasion is that they will have the numbers to be able to overrule previous decisions, if they so chose. In such a case any overruled decision will be considered to no longer be good law. However, to do so the Court would need to overrule a long line of earlier cases and would be very reluctant to do so.
High Court decisions appear to suggest that s.44(1) requires that Australian federal politicians should not be, or not entitled to be, citizens of a foreign power, and requires political candidates, prior to their nomination for election, to take all reasonable steps to repudiate any other citizenships.
The Court could decide that to breach s 44(1) a candidate needs to be actually aware of his or her dual citizenship in order to be expected to take reasonable steps to repudiate the foreign citizenship.
In my view, however, unless the current High Court overrules previous decisions and interpretation of section 44(1), it would follow that politicians should also be required to take reasonable steps to ascertain whether they’re entitled to, or hold, another citizenship. In addition, it would also be questionable, to suggest that applying to renounce citizenship too late for the process to be completed before nominations close, equates with taking ‘reasonable steps’. Similarly, it could be argued that candidates’ failure to ascertain whether they may have dual citizenship should be held to be a failure to take a reasonable step.
So far, I have not questioned the appropriateness of viewing dual citizenship as a breach of section 44(1) of the Constitution. It has been argued that in today’s world dual citizenship is not an indication of a split allegiance.
It is also interesting to note that the Constitution does not specify citizenship as a qualification required of politicians (although, as discussed earlier, such a requirement is found in legislation). On that basis it could be argued that the Constitution is not concerned about citizenship as evidence of allegiance. Instead, the Constitution only requires all politicians to swear or solemnly declare their loyalty to the Crown.
May I encourage you to consider and predict how the High Court will rule, so that we may compare notes on the outcomes.
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So complex. Who knows what those presiding will consider the crucial issue to be but you've certainly covered all aspects Daniel. Simplistically, the notion of 'conscious' citizenship (ie, those who have taken steps to enjoy dual citizenship) I would've thought would be particularly important here. I suspect the court mayl rule that a conscious effort to enjoy dual citizenship is most important here? Its simply a pity waters didn't test her case, as she didn't enjoy any conscious benefits. The same may be able yo be said for the rest of them! Regardless, send Barnaby off. Good opportunity to do so. Ha,
This article is interesting: https://theconversation.com/to-the-high-court-we-go-six-mps-under-clouds-in-decisions-that-could-undermine-the-government-82499?utm_source=twitter&utm_medium=twitterbutton
Sorry – its Zoë Hancock here. For some reason I can't edit the reply but have attempted changing my blog name!
Even if it is found to be a conscious benefit to gaining or using dual citizenship, what is benefit? And what is conscious in this context and applying yo parliamentarians? (Physical, psychological, personal, social???) and on what grounds is this judged? But i guess that s all sorted as part of the ruling!
There are a couple of things that concern me here. The first is how can there not be a system in place that forces all parliamentarians to check, ensure and confirm their allegiance to Australia above all else, and if there is a system, why has it failed so dismally? If the attention to detail of our politicians is such that they don't really know what their citizenship entitlements of other countries are, what other issues might they have not applied attention to detail to when voting on legislation? Imagine the temptations involved in a massive multi billion $$ trade agreement with another country to which an Australian voting politician has equal allegiance. How might the other country view dual citizenship – are there laws in that country that open the dual citizenship holder up to serious legal persecution for legislating against them, compromising that person to vote against Australia? More questions than answers for me!
We really are hoping that the High Court will try to answer these questions. I would opt for the objective test of awareness as the subjective test’s exposure of the level of ignorance in our parliamentary ranks would be too much of a cringe.
There really are so many unanswered questions. Let’s hope the High Court Justices answer most of them. Even better, if they decided to spell out who should be doing what. As the AEC warns potential candidates of the need to ensure they are qualifies, and illustrates what can go wrong, perhaps it could be entrusted with the role of checking whether candidates are qualified. Assuming of course that the High Court has spelled out who is and isn’t qualified.
Daniel Stepniak: What is your interpretation of Section 46 of the constitution? I have read it and interpret it to mean that anyone found sitting in parliament illegitimately has to pay anyone who sues them the sum of 100pounds per day that they sat. I later heard that this had been capped but I'm not sure if that's true or not.
I am glad you raised this issue, Lisa. I have been waiting for someone to propose that the threat of such a penalty could motivate our commonwealth parliamentarians to take greater care checking their citizenship.
Section 46 begins with – Until the parliament otherwise provides. Parliament has legislated and the governing Act is the Common Informers (Parliamentary Disqualifications) Act 1975. The penalty recoverable from a disqualified member is set at $200 per day and appear to be capped at 12 months. This tiny Act is worth a look.
The glaring distinction between s46 of the Constitution and s3 of the 1975 Act is that the Constitutional penalty was huge – 1/4 of parliamentarians annual salary of £400 per day. (see Const s48) Currently, $200 per day is insignificant against parliamentary salaries. Imagine how careful our parliamentarians would be if they risked 1/4 of their annual salary for each day of sitting while disqualified.