The parliamentary eligibility law is an ass – but it is the law.

Jul 26, 2017

Australia’s restrictive eligibility criterion for entering Parliament is out of touch with modern reality but, as long as it is the law of the land, it has to be enforced and be seen to be impartially enforced. 

As someone with Canadian (Larissa Waters) and New Zealand (Scott Ludlam) citizenship, as well as Australian (three separate oaths in three different countries: does Her Majesty have a more loyal subject?), I believe the law barring an Australian citizen who has another nationality from entering Parliament is both anachronistic and absurd.

Section 44 of the Constitution excludes citizens of a foreign power from being eligible to be an MP or Senator. The world, and Australia’s demographics, have moved on since 1901 when just over three percent of Australians were born outside the Empire (which of course included the UK, Canada and New Zealand). As the latest census confirms, around half of contemporary Australians were either born overseas themselves or have one foreign-born parent, and in recent times China and India have been among the major sources of migrants.

In today’s globalised world, multiple identity is a fact of life for many people. In my case perhaps the fact of Hinduism having gazillions of deities makes it easier to align emotions to multiple national identities. But consider. Although I am no longer a citizen, I was born and grew up in India and all my siblings and numerous nephews and nieces are still there.

My wife is Australian with six-seven generations of Irish Australians among her ancestors. We spent two weeks last September driving around many of South Australia’s frontier towns. The churches and cemeteries of Wirrabara, Caltowie, Jamestown, Yatina, Yongala, Whyte Yarcowie etc. are deeply populated with memories of her ancestors.

We met, were married and had one son born in Canada. Before returning to the ANU in Canberra we spent another four years in Canada 2007–11. While our second son was born in Fiji (we truly are the confetti of the empire on which the sun never set), we moved almost immediately to New Zealand where we lived as a young family for 16 years and one son has stayed there.

On what basis should I feel – emotionally, sentimentally, intellectually – a foreigner in India, Canada, NZ, or Australia? Incidentally, additional citizenship is not a bar to going into parliament in Canada and NZ: you just have to be a citizen. Vox populi: let the voters choose is simple yet powerful.

That said, section 44 is the existing law. Those in charge of making laws have the least excuse for ignoring this, whether wilfully or unintentionally. The cases also show the present oversight system is grossly inadequate and the Australian Electoral Commission is not fit for this purpose.

As for the law being absurd, the first and most obvious point is: what does it say for our society that our head of state can be a foreign citizen but not an MP? That a Canadian and a Kiwi (or in the past a Brit) should be caught up in this eligibility trap only heightens the absurdity. Bearing in mind Australia’s status and constitutional link with the UK at the time section 44 was enacted, the citizen of any country whose head of state is the UK monarch should be entitled to contest for a seat in the House or the Senate. Given the formidable challenge of constitutional amendments in this country, perhaps the High Court could demonstrate some evolutionary creativity in interpreting the existing provision.

There is a second respect in which the law is absurd in the modern world. Citizenship laws vary considerably country to country; some are complex and opaque depending on birth, nationality of one, the other or both parents, and domicile; and people can end up acquiring foreign citizenship without necessarily being aware of it. For example an Australian woman married to a man from a small group of countries could become a citizen of that country solely from the fact of her marriage. As Brendan of South Australia noted in a letter, “It seems very odd … that eligibility to stand for election in Australia should depend on the operation of foreign laws. What is to stop a hostile state extending its citizenship to all Australian MPs and candidates, and thus rendering them ineligible?”

Good question.

The related practical issue is whether those caught in the net should be made to repay salaries received and debarred from collecting parliamentary pensions. The principle is quite simple: anyone should return monies (and goods) received to which they are not legitimately entitled. And punitive costs should be imposed on money fraudulently earned. Our MPs are notorious for rorting so-called “entitlements” and, if caught, at worst they repay. Others should be so lucky.

On this principle the disqualified senators should be made to repay. Sympathy based on honest errors means punitive costs need not be added. There are also two additional pragmatic reasons. First, burning anger at the elites looking after themselves while battlers suffer has given us Trump, Brexit and anti-globalisation backlash around the world. Liberal democracy is experiencing a worldwide crisis of legitimacy with declining trust in public institutions. In a Roy Morgan research poll published last month, only 16 percent of Australians hold MPs to be ethical and honest. The last thing this country needs is for citizen anger to intensify. The Centrelink parallel is the most commonly cited by members of the public in letters to the editor, online comments and talk-back radio. Recipients overpaid by trifling amounts have to repay, even if the original mistake in overpayment was caused by Centrelink’s carelessness.

Second, at present the system relies on candidates’ honour in answering the eligibility question correctly. But if they can get away with it, and keep whatever benefits they gained while in Parliament, they have little to lose and lots to gain by staying silent on ineligibility until exposed. Even one hard example of financial hardship caused on discovery changes the incentive structure.

In response to a media request, “Labor’s Penny Wong, Doug Cameron and Tony Zappia declined to present their documents.” Meanwhile “Independent senator Lucy Gichuhi, parliament’s first Kenyan-born senator, pointed to a High Court ruling that found she was duly elected and that Labor’s push to challenge her citizenship should be refused.” Gichuhi migrated to Australia in 1999 and became a citizen in 2001. The court essentially dismissed the challenge on the grounds that Labor had acted too late. (Her maiden speech on 21 June was exceptional.) Thus the judges threw out the case on a technicality without determining the substantive issue of her status as a Kenyan citizen. Kenyan law was changed to the effect that any Kenyan over 21 who takes on another citizenship automatically ceases to be a citizen of Kenya.

This is far from satisfactory. Either the law should be changed to insist on Australian citizenship and not worry about additional citizenship: none of the people named in this essay would have faced the slightest difficulty in such a case. Or else more stringent verification procedures are necessary, else the messy situation will keep recurring and our electoral system will fall into further disrepute.

Ramesh Thakur is a professor in The Crawford School of Public Policy, ANU.

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