ALLAN N. HALL. The problems of dual citizenship.

May 30, 2018

With roughly half the Australian population either born overseas or having parents or grandparents born overseas, it is little wonder that dual citizenship has increasingly emerged as a problem for some Australian citizens seeking election to the Federal Parliament. This is especially so for second generation Australians who were born in Australia, but who may be entitled to citizenship of a foreign country by descent. 

The problems stem from s.44(i) of the Commonwealth Constitution  which provides that “(a)ny person who is under any acknowledgement of allegiance, obedience or adherence to a foreign power, or is a subject or 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 member of the House of Representatives”.

The purpose of s.44(i) is obviously to prevent persons who may have divided loyalties from being elected to Parliament. Whether, in contemporary multi-cultural Australian society,  s.44(i) achieves that purpose, or whether it operates to frustrate the ambitions of first and second generation Australians who wish to serve in Parliament, is a question that needs to be addressed.

The disqualification in s.44(i) is expressed in mandatory language and it is now well settled that, subject to one narrowly confined exception, it means exactly what it says. Any person who falls within either limb of s.44(i) is incapable of being chosen or of sitting as a senator or a member of the House of Representatives.

The first limb of s.44(i) (foreign allegiance) has received little judicial attention to date. However, as to the second limb (subject or citizen of a foreign power), the High Court has resolved most of the issues as to the proper construction of the subsection,  but has left a trail of potential problems for some dual citizens as a consequence.

It is well settled that the crucial date for determining whether or not a candidate is disqualified by s.44(i) is the time of nomination, not some later date such as the date of declaration of the election. This interpretation has undoubtedly been the cause of many problems for prospective candidates and has been widely criticised.

It is also well settled that, although the situation was clearly otherwise at the time of Federation, the United Kingdom is now a “foreign power” for the purposes of s.44(i). In this regard, the Court has repeatedly held that the question whether a person is a subject or citizen of a foreign power is determined according to the law of the foreign  power in question.

Normally, renunciation of citizenship must be made in accordance with the law of the foreign country. Unilateral renunciation of allegiance to a foreign power – e.g. as part of a naturalisation ceremony in Australia – is not sufficient, in itself, to terminate foreign citizenship for the purposes of s.44 (i).  Furthermore, ignorance of one’s status as a subject or citizen of a foreign power does not excuse a candidate from failing to renounce that citizenship. These decisions by the High Court have also caused a number of members of Parliament to be disqualified.

The only exception to this strict construction of s.44 (i) is drawn not from the words of s.44(i) itself, but rather from the “constitutional imperative” (a necessary implication)  underpinning our Constitution that no Australian citizen should be “irremediably” prevented by foreign law from seeking election to Parliament.

As explained by the Court in Re Gallagher (9 May 2018),  the exception will only apply where two circumstances are present. First, the foreign law (as to renunciation) must operate “irremediably to prevent an Australian citizen from participation in representative government” (i.e. in such a way as to place an irremovable obstacle in the way of renunciation, and thus of the right of an Australian citizen to seek election); and, secondly, the person “must have taken all steps reasonably required by the foreign law, and within his or her power, to free himself or herself of the foreign nationality”.

As Senator Gallagher found to her sorrow, the failure of the UK Government to grant her application for renunciation of her British citizenship by descent prior to the date on which she nominated for election, did not bring her within this exception. She was not “irremediably” prevented by UK law from renouncing her British citizenship.

In my view, this exception is still very much a “work in progress”.  If s.44 (i) remains unaltered, its limits are sure to be tested in future cases. However my expectation, from what the Court has thus far said, is that the exception will be narrowly confined.

Following the decision of the High Court in Re Canavan last October, the Turnbull Government referred the s.44 issue to the Joint Standing Committee on Electoral Matters (JSC) for consideration and report as to the action that the Government should take to resolve the problems that this section has caused. The Committee tabled its Report in Parliament on 17 May 2018.

The Committee recommended a referendum either to repeal the section or to insert the words “Until the Parliament otherwise provides” at the beginning of the section. Either amendment would achieve the same outcome: it would be for Parliament to decide the grounds of disqualification. The Committee acknowledged that “the preconditions for a successful referendum do not yet exist and may take time to achieve”. Nevertheless, it challenged the Government not to let the matter drop.

The Committee stressed that, unless s.44 is repealed or amended, problems will continue to emerge, and significant numbers of Australians may be discouraged from seeking election to Parliament because “compliance with s.44 is too onerous and expensive and, for many Australians, ultimately unachievable”.

The Prime Minister has said  that there isn’t sufficient time to deal with a referendum between now and the next election, and has expressed  doubt “whether Australians would support a change to the Constitution to allow people with dual nationality to sit in Parliament”.

This would undoubtedly be the central issue if a referendum were to be held at some future date. The JSC declined to express any concluded view on the issue of dual citizenship and recommended that if a referendum were successful, the Government should then engage with the Australian community “to determine contemporary expectations of standards in order to address all matters of  qualification and disqualification for Parliament through legislation”.

In my view, however, if a referendum is to have any prospect of success, the debate as to what is to replace s.44 must occur before the referendum. There needs to be both bi-partisan and widespread community support for the measures proposed to be enacted by Parliament, assuming that it is given the power to do so.

The need to protect the integrity of Parliament and our national security by ensuring that our elected members of Parliament are not  at risk of allowing conflicts of loyalty or undue external influence to affect their performance is, in my view, of greater importance today than it was in 1901.

However, the vital question that needs to be addressed is how best to secure those objectives in contemporary Australia.  Disqualification of Australian citizens with foreign citizenship by birth or descent, who have not renounced their citizenship before nominating for election, has been shown to be a very blunt and indiscriminate weapon. No one has questioned the loyalty to Australia of any of the senators or members of Parliament who have been found to be disqualified because of dual citizenship.

Part of the problem is that s. 44(i) allows no distinction to be made between Australian citizens with foreign citizenship who were born overseas and those who were born here. In the multicultural nation that Australia has become, there would surely be widespread agreement that Australian citizens who were born here, but have an entitlement to foreign citizenship by descent, should not  be disqualified – except, perhaps, where the foreign citizenship has been activated.

In my view, the most compelling argument for repeal of s.44 is that it will enable Parliament to exclude second generation Australians from potential disqualification and to address, more creatively than the High Court has felt able to do, any potential problems of split allegiance so far as  first generation Australians are concerned.

If s.44 is to remain unaltered, the  JSC has recommended that the Government should consider strategies to mitigate the impact of this section on political participation. These include legislative and administrative measures to tighten the procedures for ensuring that persons with dual citizenship, or potential dual citizenship, are forewarned of the requirements of s.44 and are made aware of the steps that need to be taken to remove any grounds of disqualification.

Many Australians may see this  outcome as less than satisfactory. However, at least, there is now no excuse for any candidate for election to be unaware of the requirements of s.44(i) and of the need for timely action to renounce any foreign citizenship prior to nominating for election.

The need for the repeal or amendment of s.44 was first recognised nearly 40 years ago. Despite numerous recommendations since then, successive Governments have shelved the problem, and the present indications are that the Turnbull Government will do the same, at least until after the next election.

I agree with the JSC that s.44 should be repealed or amended, as proposed, and would urge the Government not to ignore the Committee’s recommendations in that regard. In the meantime, national debate on the best way to address the problems that have emerged may serve to keep the issue alive.

Allan Hall is a former Deputy President of the Commonwealth Administrative Appeals Tribunal. In retirement, he maintains a keen interest in current constitutional and other legal issues. 

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