By Graeme Orr, GLOBALCIT Australia country expert
Under the Australian Constitution, a dual citizen of – or anyone with allegiance to – a ‘foreign power’ is not qualified to be elected to or sit in the national parliament. This provision, which has caused some inconvenience to candidates and MPs in the past, has erupted in 2017. At the time of writing, five current MPs have been referred to the High Court of Australia for breach of the provision, with two more references anticipated and potentially more to be uncovered.
This barrier has been set in stone since the national Constitution became the foundational law in 1900. The provision traces to the rule of 1701 that required a single fealty to the then unified United Kingdom (UK) crown. Its desirability, in a modern immigrant society like Australia was questioned in more than one parliamentary inquiry since the 1970s.
Australia has a fairly rigid national Constitution. It can only be explicitly amended through a referendum, initiated by the national Parliament but passed by a majority of electors, including in a majority of the States. In contrast the rule against dual citizens being elected has been modified or abolished in systems with flexible constitutions. Tellingly, the rule no longer applies in the UK, nor in Australia’s closest cousin, New Zealand (NZ).
It has also been abandoned or reformed in all six Australian States (whose constitutions do not require referendums). And it was never adopted in Australia’s two self-governing Territories. So at sub-national level, dual citizens can be elected. The only barrier (in five States) is to a serving MP who actively takes out foreign citizenship whilst in office. Elsewhere I have argued the substantive undesirability, and the procedural problems, with the dual citizenship and related disqualifications. Electors should be able to elect any fellow elector. Any conflicts that arise during an MP’s term in office should then be resolved rationally, not through court rulings voiding elections long past.
The pending court references involve MPs who insist they had no knowledge of their dual nationality. There are three MPs born abroad: one in Canada, one in NZ, and one in India. And some five who inherited dual citizenship through an overseas-born parent. To give a flavour of the facts, here are two vignettes.
The ‘Canadian’ Senator was born to Australian parents, left Canada at 3 months of age, and her family ‘lore’ was that her naturalisation as an Australian undid any Canadian citizenship. It transpires that Canadian law was liberalised shortly before her birth. In the case of the Senator born in India, he was born well after partition, but his father had been born in Wales. He inherited UK citizenship, which he sought to renounce by emails just prior to the 2016 Australian election.
Questions of dual nationality involve a mix of fact and law. There is the question of what is a ‘foreign power’. The original Constitution was drafted when Australia was a dominion within the British Empire. Ironically the law was more generous than it is today: the UK, NZ, Canada for instance were not ‘foreign’ back then. But Australia is now fully independent: the Court has previously ruled that the UK became ‘foreign’ by 1986 if not before.
Then there is this question of foreign law. This is what trips up would-be and even serving MPs. Citizenship may be acquired, without warning, by descent, birth or marriage. Overseas laws change regularly. Some countries make renouncing dual citizenship difficult if not impossible. In extremis, a strict reading of the barrier would mean that a mischievous nation, say the DPRK, could declare every Australian a citizen of that country, and Australia’s Parliament could never be filled!
In response, the High Court in an earlier case allowed a defence of ‘reasonable steps’ of renunciation. In the pending hearings, it is likely that most of the MPs will argue that they could not take reasonable steps if they were unaware of their dual nationality. Yet if the Court injects such a subjective element – or a test of constructive knowledge – into the defence, the rule will become fairer but less certain.
The resulting political fallout has created not a constitutional crisis, but a farce. Cynical electors wonder how MPs could not ‘know’ about their dual status. But they underestimate the intricacies of the law, the fact that there is no ‘world register’ of citizenship, and the impost this places especially on under-resourced minor party candidates, and at snap elections.
A follow-up blogpost will discuss the Court’s decision, which may yet take several months.