We all thought that Section 44 of Australia’s Constitution was straight forward, if you held citizenship of a foreign nation you were ineligible to sit in the federal parliament. To most Australians this was a reasonable proposition, your only allegiance if you are a member of the federal parliament should be to Australia.
When two Greens Senators who were born overseas resigned when they discovered they were dual citizens of their birth country, some leftists cried we needed to think about reforming Section 44 in this age of globalisation. However most rational commentators correctly pointed out that any such referendum to reform it would fail as the last thing Australians want in this day and age is more politicians under foreign influence.
The Greens were labelled sloppy by the Coalition for losing two Senators due to the Section 44 and told they needed to get their act together if they thought they could run the country. We were told that the major parties had much more thorough vetting processes in place to prevent any of their MPs being the next to be found ineligible.
However, since then we have had Matt Canavan stepping down from Cabinet after he revealed he holds Italian citizenship. The Coalition claimed his situation was different as it was his mum took out Italian citizenship on his behalf when he was 25. We were first told his mum did this without Canavan’s knowledge (which was labelled the Shane Warne defence) however we later learned that was not true as he had a conversation with his mum at the time she did this so he would have been aware of it when he ran for parliament.
The Coalition therefore rightly looked hypocritical in declaring the Greens slopping for their Section 44 oversights yet made excuses for their own side. Most constitutional experts agreed that Canavan’s defence wouldn’t wash with the High Court’s strict interpretation of Section 44. Just because a conservative politician hadn’t done their due diligence with regard to Section 44 was not a reason to question the merits of the section.
However, the latest twist in the Section 44 saga certainly has many Australians now worried that it might not be serving the nation in the manner it was intended. Deputy Prime Minister Barnaby Joyce has now been revealed to be a New Zealand citizen by virtue of the fact his father was born in New Zealand 1924 as a British subject before Australia and New Zealand introduced citizenship laws. Under New Zealand’s citizenship laws Barnaby Joyce then become a citizen of New Zealand by descent even though he was born in Tamworth in 1967.
Joyce’s case is clearly different from Ludlam’s, Waters’ and Canavan’s in that he was not just born in Australia but never notified he was a New Zealand citizen. Canavan was opted in by his mum which he was informed about (despite his denials). This is why it is right for Joyce to refer the matter to the High Court to decide on such a matter.
The High Court’s strict interpretation of Section 44 was laid out in the case Sykes v Cleary 1992 in the aftermath of the Wills 1992 by-election. Not only did the court declare that the winner Phil Cleary’s election was invalid due to him being a public servant but that the Liberal and Labor candidates John Delacretaz and Bill Kardamitsis respectively were also ineligible to run as they held dual citizenship.
The High Court ruled that Kardamitsis and Delacretaz did not take the steps required to divest themselves of their foreign citizenship and were still “entitled to the rights and privileges of a subject or citizen of a foreign power”. Reasonable action needed to be taken to discharge foreign citizenship but the court added “what amounts to reasonable steps to denounce foreign nationality” depends on “the situation of the individual, the requirements of the foreign law and the extent of connexion between the individual and the foreign state”.
This last statement by the court is what might save Joyce as he has almost no connection with New Zealand. However, there is still the possibility that the High Court could rule that Joyce should still have known the New Zealand citizenship laws no matter how obscure it is. The fact that the media and the Labor Party thought Joyce’s situation was worth investigating is proof that people are aware of New Zealand’s law. The New Zealand government also offers an online test to find out if you are a citizen of New Zealand.
Sykes vs Clearly also saves Australia from entering the theatre of the absurd with regard to Section 44 “To take an extreme example, if a foreign power were mischievously to confer its nationality on members of the Parliament so as to disqualify them all, it would be absurd to recognize the foreign law conferring foreign nationality”. This means that as Christopher Pyne suggested North Korea could not declare all federal MPs citizens of North Korea to make them all ineligible.
Though some would argue that we have already entered the theatre of the absurd with the Coalition’s response to the Joyce revelations is to accuse the Labor Party of colluding with the New Zealand Labour Party to bring down the Australian Government. Julie Bishop even claimed that she would find it hard to trust a future Labour New Zealand government. This is despite the fact that it was the conservative Interior Minister Peter Dunne who confirmed Joyce was a New Zealand citizen and rejected the conspiracy claim. The fact cannot be disputed that Barnaby Joyce was a citizen of New Zealand.
It should also be noted there was also the scare for the Coalition over whether Liberal MP Julia Banks held Greek citizenship and One Nation Senator Malcolm Roberts has been referred to the High Court over whether he took appropriate enough steps to renounce his British citizenship. The Labor Party is rejecting calls to have their MPs citizenship scrutinized as they are quite confident their internal vetting processes are thorough enough.
If Section 44 is still serving Australia well will depend on how the High Court applies the precedent set out in Sykes vs Cleary. If Joyce is declared ineligible then it would open a Pandora’s Box that any MP with a parent born overseas was open to being challenged which could lead to a high degree of uncertainty over the operation of our Federal Parliament. Given the latest twist in the Section 44 saga we are asking our readers: do you still support Section 44?