SPENCER ZIFCAK. The Trouble with Section 44: the constitutional provision afflicting our Parliament

It’s been quite a month. At least seven members of the Federal Parliament have been referred to the High Court to determine their eligibility to have been elected, and there is a real prospect of an outcome that could cost the Turnbull government its House of Representatives majority. The stakes are very high.

This all turns on the wording of section 44(i) of the Australian Constitution. Here it is:

Any person who:

(i) is under any acknowledgment of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen entitled to the rights and privileges of a subject or 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.

One might think reasonably that this means ‘game over’ for all seven members of parliament whose situation will wend its way shortly to the High Court, sitting as the Court of Disputed Returns. All of them, bar One Nation Senator Malcolm Roberts, acknowledge that they were dual citizens at the time of their election in July 2016. Senator Roberts refuses to say anything about his citizenship status except that he firmly believes himself to be an Australian citizen, an assertion likely to cut no ice whatever with the Court.

The wording is very clear. Here’s an abbreviation:

Any person who…is a subject or a citizen of a foreign power…shall be incapable of being chosen…

But, as with most constitutional matters, nothing is ever quite as straightforward as it seems. So, even given the plain words, the High Court has previously established at least one exception to the rule.

Whether or not a person is a citizen of a foreign country is a matter governed by the law of that country. It is not a matter that the law of Australia can determine. So, if the law of a foreign country provides that a person is incapable of renouncing their citizenship of that country, a breach of s.44 will not occur if the person has nevertheless taken ‘reasonable steps’ to renounce their foreign citizenship.

What constitutes reasonable steps, however, is far from clear. The High Court described the situation this way:

“What amounts to the taking of reasonable steps to renounce foreign nationality must depend on 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”.

Be that as it may, none of the parliamentarians in question appear to qualify for that exception. That is because none of the foreign states from which the present MPs are drawn – Britain, Italy, Canada and New Zealand – presently provides insuperable barriers to renunciation.

The reasonable steps test may also apply more widely. So, for example, many countries will set down the precise steps required for a person to renounce their citizenship. But other countries may provide no guidance whatever as to the steps to be taken. In such a case it can still be expected that a dual citizen should take reasonable steps, in some appropriate form, to renounce their citizenship if they are to qualify to sit in the Commonwealth parliament.

The test creates a major hurdle for all the parliamentarians whose eligibility is presently in question. This is because in all the cases, for a variety of different reasons, none had taken any steps actively to renounce their citizenship. All were caught in a situation where, for one reason or another, they had not realized that they were dual citizens. Once the fact of foreign citizenship was established, however, they fell foul automatically of the s.44 prohibition.

At least that is the situation unless the High Court, in its consideration of the present cases, implies some further exception to the rule contained s.44(i). There are three candidates for such an exception.

First, in dissent in the case of Sykes v Cleary in the early 1990s, two judges of the High Court held that a person could be deemed to have renounced their citizenship of a foreign country, without having done so formally, if he or she had had a long-term association with Australia and had renounced their citizenship through the process of Australian naturalization. The road to such an exception now appears blocked, however, because no such renunciation at naturalization is now required under Australian law. One is asked, simply, to pledge one’s loyalty to Australia and its underlying values.

Secondly, the Court could say that if a parliamentarian’s foreign citizenship had been obtained not through any conscious action by him or her, but rather by descent as a consequence of their parents’ citizenship; and if the parliamentarian had remained unaware of this cross-generational status transfer, s.44 will not have been infringed.

The problem here is that it may fairly be assumed that all of the parliamentarians in question had been aware of their parents’ origin in another country. That is, with the exception of the Greens senator, Larissa Waters, who was born in Canada while her parents were on sabbatical leave there. She obtained her citizenship automatically by birth therefore, even though both her parents were Australian.

In both these circumstances, having been given notice of s.44(i) when completing their eligibility forms, it seems reasonable to expect that the politicians should have perceived the possibility of a conflict, made the relevant inquiries, and then acted to renounce their foreign citizenship. By missing or ignoring the red flag, each is likely to be considered not to have taken the reasonable steps required to legitimize their eligibility for election.

As to this, Senator Ludlam was right when in his resignation statement he said: ‘I apologise unreservedly for this mistake. This was my error, something I should have checked when I first nominated for preselection’.

The High Court is unlikely to imply a constitutional exception to s.44, just to make up for the parliamentarians’ failure to exercise due diligence. That would put an end to Barnaby Joyce and Fiona Nash.

Thirdly, the High Court could say that a person will not be considered to be in breach of s.44 if they did not know, and could not have known, that the citizenship of another country had been conferred upon them. In this circumstance, a person could not take reasonable steps to renounce the status of foreign subject or citizen because the requisite knowledge required to do so would have been absent.

The only case that might fall within such an implied exception would be that of Senator Canavan. If his account is correct, it was his mother who had applied for Italian citizenship on his behalf without his knowledge. He became aware of her action, it seems, only when the current spate of resignations pursuant to s.44 commenced.

The High Court could consider such an exception favourably. That is because in the absence of any knowledge of one’s foreign citizenship, and having had no prompt to uncover it, it would be impossible to say that a person had suffered from the split allegiance that s.44 had been designed to prevent. Whether Senator Canavan would fall within such an exception would depend in the end on the accuracy of his account.

The Prime Minister in parliament declared confidently that Barnaby Joyce is ‘qualified to sit in the House and the High Court will so hold’. He is a fine lawyer. He should have known better than to pre-empt the Court’s decision. The judges will not be impressed. And anyway, in this instance, he’s likely to be wrong. In constitutional matters, unambiguous words usually win out.

Spencer Zifcak is Allan Myers Professor of Law at the Australian Catholic University and Acting President of Liberty Victoria

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Spencer Zifcak is Allan Myers Professor of Law at the Australian Catholic University and former President of Liberty Victoria.

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