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

  1. Tony Kevin says:

    Good to see this important topic aired on Pearls and Irritations. In the case of Canavan, several Italian consular officials and authorities have said , to Emma Alberici and others, that it is impossible for people to apply to activate their latent rights to Italian citizenship by applying through another person. They would need to personally sign the papers to do this. So unless Canavan’s mother pretended to be Canavan and signed without his knowledge in his name , there is a difficulty here in reconciling different accounts.

    • Terry Mills says:

      The Italian Consulate have also confirmed that a person in Canavan’s situation, reviving their Italian citizenship would also need to attend an interview as part of the formalities.

      Either Canavan has forgotten or he’s lying or the Italian Consulate let slip its procedures : we shall see.

  2. Iain Stewart says:

    1. The Australian Electoral Commission has for some time, and certainly for the 2016 election, drawn attention to Constitution s 44(i) in the Candidates’ Handbook and prominently on the first page of the nomination forms for both houses: it is unmissable.
    2. Senator Canavan’s mother seems not actually to have applied for citizenship (although she might have thought that she was doing so). As I understand it, Italian citizens are required to register their place of residence and those who are resident abroad for more than 12 months to do so in the Registry of Italians Resident Abroad (A.I.R.E.): http://www.esteri.it/mae/en/italiani_nel_mondo/serviziconsolari/aire.html. This is a registry of people who are already Italian citizens. It might be a way to confirm citizenship if citizenship is in doubt, but it is not a method of acquiring it.
    3. Wikipedia, just for once, is doing a good job. It is tracking these events promptly and as accurately as the media: articles “Section 44 of the Australian Constitution”, “2017 Australian Constitutional Crisis” (though that name will probably change soon) and, on the key High Court precedent of 1992, “Sykes v Cleary”.

  3. John Battye says:

    It also should turn on the definition of “foreign”. In 1901, “foreign” meant any country outside the British Empire. In 1931, the Statute of Westminster, in listing certain Dominions, did so on the basis of their majority “British Subject of British Ancestry owing allegiance to the shared British Crown” demographics. This included the Union of South Africa wherein the majority of the white population was of British stock. These Dominions were understood to be “family” and not “foreign”. Also included in this definition of “family” were those Servants of British Ancestry in the Wider Empire on Empire or Church Service. This provided a shared form of “family citizenship” which would remain in aeternum, and be superior to any local form of citizenship in these Dominions should it come about, the 1992 ‘Sykes vs Cleary’ in Australia notwithstanding.

    Thus, in terms of contemporary interest, Scott Ludlum, Larissa Waters, Barnaby Joyce, Fiona Nash – for example, being of sound British stock hold this form of “family citizenship” (still), and their non-Australian citizenship eligibility – is therefore not to a “foreign power”. Therefore, this S41(i) of the Constitution cannot apply to them. It has only been made to apply to them out of multicultural sensitivities where to a Greek or an Italian or a Chinese, for example, this form of British stock “family citizenship” is indeed “foreign” to them.

    The High Court cannot throw out or overturn the Statute of Westminster without committing serious sedition against the Crown. ‘Sykes vs Cleary’ is also constitutionally dubious as it also falls within the same constitutionally dubious territory.

    During WW2, both Menzies and Casey held positions in Churchill’s British Wartime Cabinet, with Casey being British Minister to the Far East, notwithstanding the fact that their electorates were in Australia, and not in the UK. Constitutionally, nothing has changed since, and it theoretically possible to do a reprise in and after 2017, should the need arise.

  4. Andrew Farran says:

    The article above concludes more or or less with the following words:

    ” In constitutional matters, unambiguous words usually win out.”

    With the High Court this need not be the end of the matter.

    First, the Court has to deal with what should be a living Constitution for the betterment of the country in a living situation. More than once the HighCourt has reversed itself over the past century or so to accord with current practice and common sense. It is not obliged to apply ‘black letter law’ where the consequence would be nonsensical.

    Second, with respect of ‘black letter law’, where an interpretation would be nonsensical in the light of experience and circumstances, it is appropriate to examine the record (i.e. the Convention Debates) to get an insight into the drafting of the Constitution. Here the question would be: what in their minds would be a ‘foreign power’? As actions speak louder than words, take a look at the composition of the earlier Parliaments. They included well known drafters of the Constitution, subsequent Prime Minsters and Ministers) a number of whom had in the way in which Sect 44 (i) is being interpreted by many today would have been ‘dual citizens’. They did not believe for a moment that they were illegitimate. In other words their notion of ‘foreign’ was obviously not to be taken literally, and, indeed, the word ‘power’ may have had a certain extraneous significance in their minds.

    The comment above about the Statute of Westminster also puts these comments in their historical (and relevant context).

    We shall see!

  5. Iain Stewart says:

    John Battye, the High Court decided in Sue v Hill (1999) that the UK has been a “foreign power” as in Constitution s 44(i) at least since the Australia Acts of 1986, so that someone with British nationality is ineligible for election to the Commonwealth parliament. The High Court exercises a development of the autonomy that the Statute of Westminster recognised for the Dominions.

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