By Elisa Arcioni and Helen Irving (University of Sydney), GLOBALCIT collaborators

A recent drama concerning the citizenship status of seven members of the Australian Parliament has drawn attention to the complex legal landscape surrounding multiple nationality, as well as the specific meaning of a provision of the Australian Constitution that governs eligibility to stand for, or serve in, the Australian Parliament. The provision – section 44 – sets out a range of grounds of ineligibility. Section 44(i) specifically provides that any 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 or a 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.’

Additionally, under Australian legislation, candidates must be Australian citizens.

The meaning of section 44(i) was first explored in depth by the High Court of Australia in 1992, in the case of Sykes v Cleary (1992) 176 CLR 77. The case involved a challenge to the eligibility of several candidates in a 1992 by-election for the House of Representatives. Among them were two men, Bill Kardamitsis and John Delacretaz, who had been naturalized as Australians, but who – it transpired – had retained their original nationality (Greek and Swiss respectively).

The Court concluded that both Kardamitsis and Delacretaz were caught by the section, as they had not taken sufficient legal steps to discharge or renounce their foreign nationality. Each of them had expressly renounced their foreign allegiance during their respective naturalization processes [1]. However, they had either not sought the appropriate executive permission or approval to discharge their non-Australian citizenship (under Greek law) or completed the available form demanding release from their non-Australian citizenship (under Swiss law).

The Court’s approach of focusing on the legal steps under the relevant foreign law was tempered, to a degree, by reference to the substantive connection (or lack thereof) to the foreign country in question. In a lengthy reflection on the Nottebohm case, in which the International Court of Justice held in 1955 that true citizenship was to be determined by a ‘close connection’ with a State [2], the Court acknowledged that Kardamitsis, since coming to Australia (23 years earlier, at the age of 17), had not maintained any substantive connection to his country of birth, noting:

The centre of his interests is Australia, not Greece. His principal family ties are with Australia, not Greece. He has participated in public life in Australia and seeks further such participation. He has had no such participation in Greece and seeks none. He has a bond of attachment with Australia and not with Greece …

The issue of ‘connection’ was relevant because the Court had stated that:

What amounts to the taking of reasonable steps to renounce foreign nationality must depend upon the circumstances of the particular case. What is reasonable will turn on the situation of the individual, the requirements of the foreign law and the extent of the connection between the individual and the foreign State of which he or she is alleged to be a subject or citizen.

Despite Kardamitsis’ lack of connection to Greece, the Court concluded that, in the absence of receiving the relevant (Greek) executive approval or permission, he remained a Greek citizen and ‘entitled to the rights or privileges of a subject or a citizen of a foreign power’; he, thus, fell foul of s 44(i) of the Constitution.

Seven years later, the Court decided the case of Sue v Hill (1999) 199 CLR 462, concerning a Senator who held dual Australian and British nationality at the time of her candidature.  The High Court re-affirmed its reasoning in Sykes v Cleary, and extended the category of ‘foreign power’ to Britain, Australia’s original sovereign.

These rulings govern the citizenship eligibility of candidates for the Australian Parliament. The Australian Electoral Commission advises prospective candidates who hold a foreign nationality that they will be ‘disqualified from election to Parliament if they do not take “all reasonable steps” to renounce their other citizenship before nomination’ and that ‘[t]aking all reasonable steps necessitates the use of renunciation procedures of the other country where such procedures are available.’ This advice is enforced by (at least) the major political parties in their candidate selection procedure. However, what happened this year has revealed the confusions and complexity in applying, indeed even knowing, the relevant citizenship law of other countries.

In July, a Senator from the Greens Party, Scott Ludlam, was alerted to the fact that, by birth, he held New Zealand citizenship. Recognising the constitutional disqualification, he immediately resigned from the Senate. Ludlam had moved to Australia from New Zealand at 3 years of age, was naturalized as an Australian citizen in his mid-teens and mistakenly assumed he had thereby lost his New Zealand citizenship. Alerted by Ludlam’s predicament, a second Greens Senator, Larissa Waters, became aware that, by accident of birth, she was a Canadian citizen. She, too, resigned, but following renunciation of her Canadian citizenship is set to run again for Parliament. Waters was born in Canada to Australian parents, left Canada at 11 months of age and never returned. Waters mistakenly thought she was a sole-Australian citizen (by birth to Australian parents) and that she had never held Canadian citizenship. Waters also mistakenly believed that she had to take positive steps to take up Canadian citizenship rather than having citizenship automatically conferred upon her.

Echoing other critics, Malcolm Turnbull, the Prime Minister and leader of the (conservative) Liberal Party of Australia, described the Senators’ situation as evidence of ‘incredible sloppiness’ on their part.

Stones in glass houses! Within a month, three members of the government discovered they too were dual nationals – all from the National Party with which the Liberal Party governs in coalition. First, Senator Matt Canavan, a Minister of State. Canavan’s mother, it transpired, was a dual Australian-Italian national and (so Canavan explained) had, without his knowledge ‘registered’ his Italian citizenship along with hers, when he was 25. Unlike the Greens Senators, Canavan did not resign from Parliament, but stepped down from Cabinet. Then, the leader of the National Party and Deputy Prime Minister, Barnaby Joyce, discovered he was a New Zealand citizen by descent through his father. Third was Deputy Leader of the National Party Senator, Fiona Nash, a foreign citizen by descent, through her Scottish-born father. Neither Joyce nor Nash have resigned from the Parliament or the Ministry.

Two further Senators from minor parties revealed they held foreign citizenship. One Nation Party Senator Malcolm Roberts was born in India to a Welsh father and Australian mother, moved to Australia when he was 7 and was later registered under the then relevant law as an Australian citizen. He admitted to having been a dual British and Australian citizen but has failed to produce sufficient documentation to show he had renounced his British citizenship prior to nomination. Questions were raised in the media as to whether he may also be Indian by birth. Senator Nick Xenophon, of the Nick Xenophon Team Party, discovered he held a form of British citizenship by descent from his Cypriot-born father.

Under Australian law, the Parliament may refer questions concerning the qualification of MPs to the High Court, sitting as a Court of Disputed Returns [3]. So far, Canavan, Waters, Ludlam, Roberts and Joyce have been referred to the Court and are awaiting a directions hearing from the Court later this month. Nash and Xenophon will have their eligibility referred to the Court when the Parliament resumes in September.

Several other members of Parliament have also faced questions regarding their potential foreign nationality due to birth outside Australia (up to a further 23 members of Parliament may be implicated) or through descent from at least one foreign-born parent. Many MPs have now produced documentation to show their effective renunciation of foreign nationality prior to nomination for election.

In the event that the Court finds any of the implicated MPs to have been foreign citizens, it will then move to the question of whether, as such, they are ineligible to serve in the Parliament. The holding in Sykes v Cleary might suggest that disqualification is a foregone conclusion for them all – it appears that they all held foreign citizenship at the time of their nomination for election. But, significant factual differences complicate the precedential status of that case and suggest that further reasoning may be required. Most significantly, in both Sykes v Cleary and Sue v Hill, all of the disqualified candidates were naturalized Australians. They clearly knew that they held or had previously held a foreign nationality. By contrast, Canavan, Waters, Joyce, Nash and Xenophon are natural-born Australians and were unaware of their foreign citizenship. Does section 44(i) disqualify natural-born Australians upon whom a foreign citizenship has been conferred without their consent, willingness, or even knowledge? How, if at all, could such a person take ‘reasonable steps’ to divest themselves of an unknown foreign citizenship in order to satisfy the ruling in Sykes v Cleary?

The intention of the Constitution’s framers, it is said – from an ‘originalist’ perspective at least [4] – was to ensure that Australia’s Members of Parliament ‘did not have a split allegiance and were not, as far as possible, subject to any improper influence from foreign governments’ [5]. However, the Court is not bound to an originalist interpretation, and much has changed over the Constitution’s long life (it was adopted in 1900), including the transformation of Australian nationals from their former status as British subjects into Australian citizens under Australian law [6].

The words of s 44 include reference to ‘allegiance’ – a notoriously slippery concept, complicated today by Australia’s and the world’s recognition (however reluctant) of dual nationality and its growing reality in many countries. Allegiance is unlikely to be fully signified in 2017 by reference to the formality of a foreign country’s citizenship law.

To date, the Court has mostly confined its definition of ‘allegiance’ to the holding of citizenship under the relevant legislation, without regard to any substantive or demonstrative character [7]. But the majority reasoning in Sykes v Cleary itself at least leaves open a consideration of a person’s connection to a foreign country as relevant to the interpretation of s 44(i). The dissenting judgments also offer food for judicial thought.

Regarding Australian-born dual citizens, Justice William Deane in dissent concluded that the clause should be read down: the whole of section 44 (i) should apply ‘only to cases where the relevant status, rights or privileges [of foreign citizenship] have been sought, accepted, asserted or acquiesced in by the person concerned.’

Justice Mary Gaudron, also in dissent, stated that the constitutional rights of Australians should not be determined by foreign law: ‘every consideration of public policy and common sense tells against the automatic recognition and application of foreign law as the sole determinant’ of such rights. What if, Justice Deane hypothesised, a foreign power decided to ‘disqualify the whole of the Australian Parliament by unilaterally conferring upon all of its members the rights and privileges of a citizen of that nation’? There must be limits, in other words, in treating unintended or unwanted foreign citizenship as genuine foreign allegiance.

The High Court of Australia is set to consider these questions regarding citizenship, allegiance and eligibility by the end of the year, but the broader debates around loyalty, dual citizenship and membership are certain to continue.

Many countries (including Britain, Canada, New Zealand, the USA) with common origins and legal systems to those of Australia do not, or no longer, prohibit dual nationals from serving in their national legislatures. The only way unequivocally for Australia to join such a group of nations is constitutional amendment following section 128 of the Constitution. Amendment requires, first, an Act of parliament, then a national referendum on the proposal, resulting in a majority of votes in favour across the nation, plus a majority in a majority of the (six) states. This is notoriously difficult. Only eight proposals out of a total of 44 have been successful, the last in 1977. Further, an amendment to s 44(i) is unlikely to be high on the agenda of the present Parliament in light of current debate centred on issues such as Indigenous constitutional recognition, whether Australia should become a republic, or (the non-constitutional) recognition of same-sex marriage.

For individual dual nationals, effectively renouncing foreign citizenship in order to stand as a parliamentary candidate, will, it seems, continue to be one of the necessary sacrifices required of those who seek, or even merely attempt, to serve as a representative in the Australian Parliament.

 

Notes:

[1] Since 1986 renunciation has no longer been required under the Australian naturalization oath. It was never legally enforced, in any case.

[2] Liechtenstein v. Guatemala [1955] ICJ Rep 4 (6 April).

 

[3] Section 376 of the Commonwealth Electoral Act 1918.

[4] The Constitution of the Commonwealth of Australia was written in the late 1890s and enacted in 1900.

[5] Commonwealth of Australia, ‘The Constitutional Qualifications of Members of Parliament,’ 1979. http://www.aph.gov.au/parliamentary_business/committees/senate/legal_and_constitutional_affairs/completed_inquiries/pre1996/constitutional/index

[6] Nationality and Citizenship Act 1948 (Cth); Australian Citizenship Amendment Act 1984 (Cth).

[7] A 2015 amendment to the Citizenship Act that appears to suggest otherwise has yet to be tested in the High Court.