The Dual Citizenship scandal/imbroglio/fiasco

By November 22, 2017Other

Though I’ve waited now a few weeks to write this essay, it is plain that the issue will go for some time. While most of the media attention is on what nine sub jure parliamentarians mean in terms of the Turnbull leadership, or the effect on citizen attitudes towards parliamentarians generally, or the outcome of by-elections caused by the dual citizenship problem, my interest lies in the deeper questions. Do we want to exclude all dual citizens from parliamentary service? Or should we extend that exclusion to the public services? I was discussing the issue with a senior lawyer while I lay in my hospital bed. He described it as ‘a right royal mess’. What sort of outcome do we want for the future? The Prime Minister has ordained that every MP and Senator will need to provide some kind of statutory declaration as to his or her standing in this matter, and that’s necessary at this stage. But then?

Let’s start with the essential pieces of law. The Constitution, at Part IV, says (s.42) that before taking your seat you need to ‘make and subscribe … an oath or affirmation of allegiance’ , while the following section says you can’t be a member of both houses at the same time. Then comes Section 44 (i), which says 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 of a foreign power’ … shall be incapable of being chosen or sitting as a senator of a member of parliament’. You might think that s.42 covers those who are dual citizens because in making an oath of allegiance you’ve made clear where your priority lies. But if you read s.44 carefully you’ll see that you shouldn’t have been chosen anyway — that is, you shouldn’t have been a candidate in the first place. If you have done these things in defiance of the Constitution, then s.45 says your place will become vacant.

Section 46 says, further, that any person can sue, so that such a miscreant ‘for every day on which he so sits, [will] be liable to pay the sum of one hundred pounds.’ Someone has already begun such proceedings against aspiring candidate Barnaby Joyce. I’m not sure how the courts will determine the matter. And while we’re on the Constitution, section 44 did not apply at the time to British subjects, for the good reason that in 1901 all Australian citizens were British subjects, and quite a lot of the members of the first Parliament had been born in Britain. Indeed, the High Court in 1906 said that the notion of an Australian nationality distinct from British nationality was ‘a novel idea’ and dismissed it. Australians have been elected to the House of Commons, too, when they were British subjects.

Which brings me to the second piece of law, the Citizenship Act 1948, much amended, and now called the Australian Citizenship Act 2007. Our 1948 legislation followed Canada’s pSSING a similar bill, and helped Australia in dealing with how refugees and migrants, arriving in large numbers, could become citizens of their new home. In 1988 the High Court ruled that even Britons would need to apply to be Australian citizens; that they were British subjects was no longer sufficient.

For a long time you could only be the citizen of a single country, but citizenship around the world has evolved too, and dual citizenships are now common. The late Aldo Giurgola, the designer of our Parliament House was a citizen of Italy, the USA and Australia, and saw that as the way it ought to be. Mind you, he only designed the building — he didn’t seek to sit in it as a parliamentarian. Some countries grant citizenship to those who have left, and to their children, and so on, apparently indefinitely. How do you renounce citizenship? That varies from country to country too, and is, one supposes, relatively uncommon. Anecdotally, and from the Internet, renouncing citizenship can be difficult.

Faced with all of this, the High Court unanimously took a straightforward interpretation of the Constitution. We can’t solve this mess for you, they said. You have to sort it out yourself. And that is not at all easy. My guess is that several dozen, possibly small hundreds, of former MPs and Senators have held their places quite illegally. None of the recent discovery is really new, however, for in 1988, 1992 and 1999 the Court overturned election in three cases where those in question were found to be dual citizens. The current ruling means that dual citizens must have taken ‘all steps that are reasonably required’ to renounce their other citizenship. And that can be difficult to do, for not every country allows to you to do so, or makes such renunciation easy. What is ‘reasonable’, and to whom?

So there will be a short-term band-aid fix, and no one presently much wants to go further. But there is need to do so, in my opinion. It is surely worrying that another country can apparently determine whether or not one of our citizens is eligible to stand for our national parliament. I had hoped that the High Court might say something to this effect. And it did so, in what seems to me a stilted way:

A person who, at the time that he or she nominates for election, retains the status of subject or citizen of a foreign power will be disqualified by reason of s 44(i), except where the operation of the foreign law is contrary to the constitutional imperative that an Australian citizen not be irremediably prevented by foreign law from participation in representative government. Where it can be demonstrated that the person has taken all steps that are reasonably required by the foreign law to renounce his or her citizenship and within his or her power, the constitutional imperative is engaged.

 What is the ‘constitutional imperative’? My reading, for what it is worth, is that no other country can have the right to dictate whether or not an Australian citizen can stand for our national parliament. I take it to be an assumption, a sort of basic law: Australians decide their own rules, because we are an independent nation-state. Ergo, the fact that a Greek Australian who has never sought to be a Greek in Greece or to hold a Greek passport or in any other way to act as a Greek citizen, should not prevent such a citizen’s offering himself or herself as a candidate in Australian federal elections.

Yes, but, the High Court says. He or she has to take all the steps that are reasonably required by Greek law to make clear that he or she does not in fact wish to be legally Greek, and publicly and apparently successfully renounces such Greekness. What are these steps? I don’t know, but we will probably find out in time.

Back to the dual citizen problem. Do we really not want dual citizens to be in our Parliament? There’s quite a good case for saying that they have extra experiences that will be valuable in the chamber. At present, the High Court is saying No. A few of my extended family have dual citizenship status (UK and Australia) while a couple of others have been born in other countries or have parents who were born overseas, and they will have the right to be citizens there too, in time. None has talked of wanting to run for Parliament, but I see no good reason why they should be excluded. As I have said before, I am a nation-state person, and see no real good in the present system of world government. I accept that we have to have something, but dislike much of what there is.

Once all countries have reached a minimum standard of living and minimum conditions for free speech and private property, then I can imagine the world moving to some kind of federated international system. And there dual or triple citizens might be most useful and in abundance, as well. But for the moment we have a problem.

Oh, and as a footnote, the Acts Interpretation Act 1901, a dictionary or manual that applies to each Parliament, says straightforwardly (at 33AB) that

 Anything done by or in relation to a person purporting to act under an appointment (including an acting appointment) under an Act is not invalid merely because: …

                     (b)  for any appointment—there was a defect or irregularity in connection with the appointment; …

 It has been suggested that some of the decisions made by former Ministers Joyce and Nash might be questioned. Their supporters will no doubt bring this little sub-section forward. It has been there for a very long time.

THANKS: I thank all those who here or via email wished me well in my recent illness.  From being hale, fit, confident and full of energy, in two days I was almost gasping for breath. Pneumonia is just awful. I am recovering slowly, with a few weeks to go before I am as well as I was two weeks ago.

 

Join the discussion 15 Comments

  • spangled drongo says:

    Good to see you are recovering, Don.

    Yes, this is a big mess! Section 44 should be ahead of s.42 and while the requirement for Aus citizenship only is a little outdated, it is a good safeguard none the less.

    One could wonder why, in this day of ever-increasing migration, the subject was and is not discussed more by political parties not only to avoid this mess but to maximise their public appeal.

  • BB says:

    Indeed as you say Don a mess. I know the horse has already bolted but I rather think dual citizenship is not a good idea. In time of civil disturbance in your own country you can claim refugee status and be accepted into Australia as a refugee. Subsequently you can become Australian citizen but still retain the citizenship of the country you came from. Later there will be no problem migrating back to your original country. This means even though you are in a foreign country as an Australian citizen you can claim and receive any welfare attributed to that status.

    I’ve seen quite a few things that mean to me that living in Lebanon there are many who are in this position. This applies even to the extent that if there is further trouble our government will spend quite a bit of money evacuating them back to Australia! In the comments I have read about this issue there are many who take the position that by accepting Australian citizenship that should immediately dissolve any other citizenship I don’t think it is possible but it looks good to me. What is section 44 though supposed to achieve? This sort of provision certainly does not mean any of our parliamentarians are not under the influence of a foreign power.

  • Chris Warren says:

    There is no great mess except for the wails from the opportunist commentariat.

    Of course, the other element of Section 44 is not holding an “office of profit” under the crown.

    This creates even more problems as this has been taken to mean receiving pay as an officer – ie a public service officer.

    As the High Court has shown a perchant to inyerpret the Constitution strictly literally, presumably this creates a technical disqualification from Members of any Parliament if a seat in Parliament is an office under the crown.

    This is a mess that could have been avoided if the Electoral Commissioner was up to the task. It is a simple matter to adjust the status of public servants who intend to nominate to comply with the Constitution, as I used this on a couple of occasions when I was a candidate.

    Of course Australian lawmakers should only have the interests of Australia in the back of their minds when creating legislation and dealing with foreign companies.

    Also would we want a current parliamentarian called up for National Service in a foreign military, based on their second nationality?

    So I do not think the Constitution is the problem – it is the electoral Commissioner, and there really is no great mess that needs fixing.

    The High Court has indicated that candidates must take reasonable steps – so this is not a difficult barrier.

  • spangled drongo says:

    Maurice Newman explains this sorry mess and lack of credibility very well:

    http://www.theaustralian.com.au/opinion/dual-citizenship-all-credibility-is-lost-by-major-parties/news-story/bdc9c96c5eb09154cf920f9f7d79858c

    You might be able to bring it up on google if you can’t access the Aus.

  • BoyfromTottenham says:

    Hi Don,
    First, a wish for a speedy recovery – they don’t call pneumonia the ‘old man’s friend’ for nothing! Secondly, what if it were legislated that all non-natives becoming a citizen have to renounce all foreign allegiances (including other citizenships)? I believe some countries already do this. Maybe we do it already in some form? Lastly, the issue of holding ‘an office of profit under the Crown’ looks like becoming the second wave of problems for sitting and aspiring pollies, especially perhaps those who were ministerial staffers, which could cast a fairly wide net. It seems the bruhaha will be with us for some time yet. Poor democracy!

  • Aert Driessen says:

    Don, good to hear that you are on the mend. I became an Australian citizen in 1966 shortly after marrying a beautiful Australian girl for the noble purpose of ensuring that we, and any subsequent family that we might have, could all pass through the same gate when travelling overseas. To accomplish that I had to surrender my British passport (born in Hong Kong) because that government did not allow anyone to hold two British passports, and I had to surrender my Dutch passport because that country at that time did not allow anyone to hold any other passport if you held a Dutch one. Neither was a problem for me. I have always seen the main benefit of having dual (even multiple) citizenship as being able to hold a passport of that country and being able to switch at any time for whatever reason. You have only focussed on the positives of dual citizenship like (perhaps) being able to contribute a wider experience to any parliament. But, holding more than one passport also makes it much more difficult to catch up with anyone should that person want to avoid authorities or even the Law, for whatever reason. For that reason I agree with BB above; I’m against dual citizenship. Make a choice and commit.

  • The concept of citizenship cannot be delinked from the right to represent. If Australians don’t want dual citizens to represent them, the first step is to stop issuing them passports.

    It does bother me that so many Australians don’t understand yhe meaning of the word, citizen.

  • PeterE says:

    Many thanks Don. Interesting, and not yet resolved at all satisfactorily.

  • Bryan Roberts says:

    What proportion of our population has dual (multiple) citizenship compared to the numbers in Federal Parliament?

  • BoyfromTottenham says:

    Bryan R – a good question but I think a much better one (but much harder to answer) is ‘what proportion of our eligible population would be in breach of S44 (i) if they were to be nominated today to stand in a federal election? Given the variety of citizenship situations shown to be tripping up our pollies over the past 12 months, and of course our historical high proportion of immigrants, I would guess the answer as ’25-50%’, but I’m happy to be proven wrong! However, our current High Court obviously doesn’t think this is an issue to be considered when making its judgment about S44. I’m not in favour of progressive courts, but a bit of common sense would be nice.

  • Peter Trandafilovic says:

    Good to see you are on the recovery path, Don. Get well soon – ageing really sucks sometimes!

    As always, your essay is thorough and thought provoking. However, I tend to see the entire citizenship issue in simpler terms.

    My sense is that the High Court (HC) got it right, one hundred percent. Unless I’m mistaken, the HC even provides guidance, i.e. “reasonable steps”, to renounce any foreign allegiance or citizenship rights. Not terribly hard to do to my mind – fill out a form or send a letter renouncing any rights or entitlements. End of story. If the foreign country won’t accept the renunciation, that’s their problem. But you have at least taken “reasonable steps” and have the paperwork to prove it. And tell the lawyers trying to muddy the waters, or split hairs for profit, to piss off.

    People who see personal or business value in retaining dual citizenship are free to do so and I would be the last criticise them for doing so, if that is their preferred approach. BUT, then, don’t expect to join the ranks of any level of government in Australia or enjoy a public service sinecure. You either commit wholly to this country, without exception, or you will be excluded from a government appointment in any capacity. Such positions are for genuine Australian citizens committed only to this wonderful country. To use the hoary old analogy – you’re either pregnant or not – being half-pregnant is not on. Unless you are an Einstein, or some other genius, Australia has a plentiful supply of genuine Australian citizens in the general population who can bring their high IQs, training, exceptional skills and overseas experiences to the business of government.

    The fact that many people now claim that they didn’t realise they were dual citizens by virtue of ancestry, or conferred rights because of their being born overseas (as in my case Germany) doesn’t, to my mind, ameliorate their failure to renounce such entitlements/rights. I go even further on this point. Given that almost all of those politicians caught with dual citizen issues have party administrative machines behind them, those administrative people processing applications for party nomination should have known citizenship declarations needed to be carefully scrutinised prior to nominations being lodged with the AEC, having regard to High Court judgements on S44 in the more recent past.

    Viewed from the perspective of a former WWII refugee evacuated to Australia in 1950, my family had to wait 9 years before being “naturalised” or, as I sometimes tell folks, that’s when we were “neutralised” of our former statelessness. We were granted Australian Citizenship in 1959 and put our past behind us as we cherished our new home and the decent people who made us one of their own. We have an enduring sense of immense gratitude to Australia, and that remains with us to the grave. Australian citizenship means that much to us and so it should to genuine Australians.

    Slackness and ineptitude by political administrators created this “right royal mess” (to use your lawyer colleague’s words) and everything which has transpired since emphasises the point. Manoeuvrings by lawyers, politicians and political organisations to divert attention from the incompetence of those who created this mess is nothing short of pathetic. Such manoeuvrings are typical of people who see themselves as some elite group or exceptional group – special people who should have special rules to set them apart from the community at large. Ignorance of the law doesn’t excuse anybody.

    In many ways I’m actually pleased that this issue has exploded onto our political stage, since it adds to the litany of questionable policies, political and administrative actions which have occurred over the past ten years, in particular. Those actions have left us with appalling national debt and bizarre policy machinations and outputs. And now we find that those at the centre of these galactic stuff-ups, probably shouldn’t have been sitting in leather on Capitol Hill in the first place!!!

    Average Australian households struggle to keep themselves afloat while sinecured politicians, bureaucrats and rent-seekers carry on their merry way as if they have found a new promised land of more government intervention. I look forward to seeing the many lightweights occupying leather in Canberra, along with their legal mates, political “advisors” and other hangers-on being shunted out the door to make room for a new breed of more intelligent, competent politicians and administrators – those who are more focused on what actually matters to the broader Australian community. Like many, I’m utterly sick to death of sectional interests or the self-interest of the so called political elite, rent seekers and minority groups. It’s high time the broader Australian community got better government administration and better value for their tax dollars – at least those few of us still paying tax!!

    • spangled drongo says:

      Peter T, +1

    • Boambee John says:

      First, best wishes for a prompt recovery Don. I had a brush with pneumonia a few years ago, it is not nice.

      I was going to write a reply, but Peter has said everything I wanted to say, and more eloquently than I would have. I fully endorse his comments.

      A thought on the origin of tbe current kerfuffle. I note that today Lee Rhiannon lost her Number 1 position on the Greens Senate ticket in NSW to a Pakistan born woman. I wonder was Lee trying a Stalinist style purge to remove the competition? The first two Senators affected were also Greens.

      If this was the cause, it seems to have been too early to be effective. She should have waited until nominations had closed!

      • Chris Warren says:

        Boambee John

        “I wonder was Lee trying a Stalinist style purge to remove the competition? ”

        I wonder if it was a standard National Civic Council/Catholic Action subversion.

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