Looking beyond the current dual citizenship crisis

Cheryl Saunders

Updated Nov 16, 2017 – 10.43am, first published at Nov 15, 2017 – 11.00pm

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Eight members of the current Commonwealth Parliament have now been found or assumed to have been invalidly elected because they hold citizenship of a country other than Australia, contrary to section 44(i) of the constitution. An unknown number of others are at risk of losing their seats on the same basis, between now and December 1, when an agreement between party leaders requires citizenship details to be disclosed.

In addition, as this saga continues, at least some replacement senators or byelection candidates are likely to be disqualified by force of this provision as well.

Many of these people did not know they held another citizenship. Lack of public sympathy for their situation is understandable, nevertheless. All prospective candidates for Parliament sign a declaration on their nomination form that they are qualified to stand; and an Australian Electoral Commission handbook draws their attention to the constitutional requirements. All could have ascertained their citizenship status if they had thought to do so. Other Australians are held to account for incorrectly completing government forms requiring more elusive information.

Jacqui Lambie is embraced by Greens senators Peter Whish-Wilson and Nick McKim after she informed the Senate she intends to resign because of dual citizenship by descent. Andrew Meares

All the MPs caught by the section this time around have citizenship of the UK, Canada or New Zealand, making it an issue for multicultural Australia only in a narrow sense. Within Parliament, both sides of politics have used the issue for partisan advantage, distracting attention from any deeper questions of principle at stake.

Such questions are potentially important. The constitution was written for an Australia that was not yet fully independent and the ways in which we deal with citizenship are evidence of it. There was no status of Australian citizen, as opposed to British subject, until 1949, almost 50 years after the constitution came into effect. As a result, the Commonwealth has no explicit power to make laws about citizenship at all; it makes do with a power over "naturalisation and aliens".

Australian citizens have no clear, constitutional right to stand for Parliament; and the lack of Australian citizenship is not a disqualification. Section 44(i) instead disqualifies anyone who is a "citizen of a foreign power".

The meaning of this term has changed over time, as Australia became independent and British subjects around the world instead became citizens of their own countries. The global context in which the section works has changed as well, as most countries, including Australia, have become more relaxed about dual citizenship, responding to the extraordinary mobility of people in conditions of globalisation.

Australian parliaments and governments had plenty of opportunity to see this coming: when Australian citizenship was created in the 1940s; when Australia formally became independent in the 1980s; when earlier court cases held that candidates were disqualified in the 1990s; and when all restrictions on Australians holding dual citizenship were removed by legislation in 2002.

In 1997, a House of Representatives standing committee specifically considered the section in its present form and anticipated trouble ahead. The report of that committee offered a thoughtful and thorough examination of the issues and options. It acknowledged the need to ensure that MPs owe their ''primary loyalty" to Australia. It nevertheless took on the task of considering whether changes could be made to safeguard against what the committee described as "divided loyalty" without discouraging otherwise qualified Australians from standing for Parliament.

In the end, it recommended that section 44(i) be replaced by a requirement for candidates to be Australian citizens, leaving disqualifications to legislation. It was equivocal about whether the legislation should require renunciation of other citizenships or merely prohibit candidates from taking advantage of them. In the event, the government took no action.

The government nevertheless accepted the committee's recommendations for various forms of preventative action to be taken by executive agencies. Among other things, it agreed that the Department of Immigration would maintain a database of citizenship renunciation procedures from the "10 countries from which most immigrants originate" for provision to candidates by the Australian Electoral Commission.

It is likely now to be much more difficult than it was in 1997 to amend section 44(i). Quite apart from public disenchantment with politicians on this and other issues, the foundational question of Indigenous recognition is, or should be, a higher priority for constitutional change. There are good reasons to put this on the public agenda, however, even if resolution takes time.

The public has an interest in broadening, rather than narrowing, the range of otherwise suitable Australians who are willing and able to run for elected national office. If divided loyalty is the touchstone, it is not necessarily offended by dual citizenship and may be offended in other ways. Any change to section 44(i) could – but need not – be part of a broader package to modernise the constitution for an independent Australia in ways that enriches Australian citizenship and clarifies expectations of elected representatives. The recommendations of the 1997 committee may not be acceptable, in detail, now. But they are a place to start.

Cheryl Saunders is Professor Emeritus at Melbourne Law School and a convenor of the Constitution Transformation Network.