News: The High Court on dual citizen MPs

The recent resignations of Senators Ludlam and Waters mean that the following provision of Australia’s constitution is having a moment:

44 Any person who: (i)  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 or a 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.

Despite some comments to the contrary, the issue is not one of foreign ‘allegiance’ – no-one seriously thinks the two ex-Senators owed, much less acknowledged, an ‘allegiance, obedience or adherence’ to New Zealand and Canada. Rather, the issue is their foreign citizenship. Both Ludlam and Waters are foreign citizens by birth, despite moving to Australia as very young children and quickly obtaining Australian citizenship. Their resignations have prompted some debate about the appropriateness of s44(i). For instance, it is startling that both Senators could now readily become MPs in the parliaments of their respective birthplaces without relinquishing their Australian citizenship.

While the media discussion of s44(i) has centred around its text and the slim possibility of a referendum, Australia’s High Court has also played a key role in the lead up to this situation.Notably, in 1992’s Sykes v Cleary, after upholding a challenge to one elected independent MP based on another part of s. 44, the Court held that the Liberal and Labor candidates who had stood in that MP’s electorate were also ineligible because of their dual Australian-Swiss and Australian-Greek citizenships. The Court ruled that the existence of foreign citizenship under s. 44 depended on the terms of foreign citizenship laws (and not, for instance, the diplomacy law concept of ‘real and effective nationality’, which would have made the candidates’ long-term Australian residency determinative.) Crucially, the Court also carved out an exception to that rule (and, it seems, the literal words of s. 44) if the candidate ‘had taken reasonable steps to renounce that nationality’ before he or she nominated. This exception, intended to ensure that all dual citizens could ultimately make themselves eligible for election, has contributed to the (in my view, unfortunate) stance that s. 44(i) is an uncontroversial impediment to eligibility and that disqualified MPs have only themselves to blame for their predicament.

Despite the current refrain that the ex-Senators didn’t ‘follow the rules’ (and the High Court’s more recent goal of ‘certainty’ in s. 44’s operation), the effect of s. 44(i) remains quite uncertain. Describing the reasonable steps test it invented, the plurality in Sykes v Cleary wrote:

What amounts to the taking of reasonable steps to renounce foreign nationality must depend upon 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. And it is relevant to bear in mind that a person who has participated in an Australian naturalization ceremony in which he or she has expressly renounced his or her foreign allegiance may well believe that, by becoming an Australian citizen, he or she has effectively renounced any foreign nationality.

The Labor and Liberal candidates held disqualified in Sykes v Cleary had each spent decades living and travelling on their birthplace passports before they immigrated to and became naturalised as Australians. The Ludlam and Waters cases could have been an excellent opportunity to test whether a  ‘connection between the individual and the foreign State’  that consists only of birth and brief, infant residence, and the ex-Senators’ apparent beliefs (at least when they were naturalised) that they had no foreign citizenship at all, mean that no further steps to relinquish citizenship (even the mild ones required by NZ and Canada) are necessary. Alas, the ex-Senators (or, more likely, their party) have seemingly judged that the political costs of litigating that question now are too high.

Their stance also means that the High Court likely won’t be asked to change its interpretation of s44(i) to other plausible, but narrower readings. In Sykes v Cleary, Deane J and Gaurdon J both dissented, each arguing that the two candidates’ naturalisation  as Australians decades ago made it unreasonable to now expect them to take even the minimal steps of seeking permission from a foreign state, or just acknowledging their potential foreign citizenship, in order to relinquish that foreign citizenship. Six years later, in Sue v Hill, a narrow minority of the High Court would have held that an MP could only be disqualified under s. 44 if the MP’s house of parliament referred that issue to the Court of Disputed Returns. That would have meant that the Senate could have opted to let Ludlum and Waters to stay in Parliament if a majority of Senators judged that their circumstances did not actually merit disqualification. As Kirby J explained:

Very many Australian citizens, whose allegiance to Australia could not be questioned, have dual citizenship with other countries. Estimates were given during the hearing, running perhaps into millions, of Australian citizens who would be affected. Their status for s 44(i) of the Constitution could not, in my opinion, depend upon (or be surrendered to) the laws of other countries which are many and varied. The defects of s 44(i) of the Constitution in a country whose citizens are drawn from so many other lands and nationalities has frequently been called to notice. The consideration of whether Mrs Hill was incapable of being chosen or of sitting as a Senator raises issues which may have considerable political significance upon which, in the first instance at least, it is completely appropriate to leave it to the Senate, rather than a court, to make a determination.

Had the dissents in either of these two cases been the majority, the two Senators would have had much better options than being forced to resign over avoidable, but trivial, errors.

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About Jeremy Gans

Jeremy Gans is a Professor in Melbourne Law School, where he researches and teaches across all aspects of the criminal justice system. He holds higher degrees in both law and criminology. In 2007, he was appointed as the Human Rights Adviser to the Victorian Parliament's Scrutiny of Acts and Regulations Committee.

52 thoughts on “News: The High Court on dual citizen MPs

  1. There is now a third dual citizenship issue for the Greens: At present, the situation is that the MP says he sent a letter (to the UK) renouncing his British citizenship, but received no response. That raises two hard questions: (1) if it turns out he still has that citizenship – e.g. because the letter he sent wasn’t received – is that sufficient reasonable steps (or should he have written again or otherwise checked?); and (2) if there is no other evidence that he actually sent the latter other than his word, is that sufficient evidence to prevent his disqualification? On the latter question, both Deane J & Gaudron J said that the party asserting disqualification bears the onus – i.e. not the MP. But they were in dissent. And, also, in a reference from the Senate, no-one necessarily asserts disqualification.

    • Further to this, current British law (which may be different to whatever applied at the relevant time) requires a signed and witness 6-page application, proof of British and Australian citizenship and a £321fee, all sent to the High Commission. Once registered, you will receive the same form with an official stamp: Query whether just sending a letter, sans proof and fee, is reasonable steps?

  2. Also of interest in the same article:

    Tasmanian Labor Senator Lisa Singh has revealed she had a citizenship “near miss” just days before entering Parliament. Senator Singh’s father came to Australia from Fiji as a British subject. “I was lucky the Labor Party did the work because, despite being born in Australia, I was shocked to find out that I was also a British citizen, through my father,” she said. “His British citizenship that he still held when I was born was conferred on me through birthright — so I had dual citizenship that I never knew about. I had to pay 300 pounds to the British High Commission to urgently rescind my British citizenship — which was confirmed just three days before I was elected.”

    But, if that’s accurate, then there might be a problem, as Sue v Hill held that the relevant date is the date of nomination, not election!

    • This is moot from a s44 perspective, thanks to the 2016 election, but it appears to imply a conspiracy by the ALP to conceal her disqualification in the 2010-16 term. I find it hard to believe there were Labor Party people sharp enough to identify the risk, who did not also know the test was date of nomination, not date of election. (A point, I think, that Senator Singh has missed.) This seems like a major scandal, on the face of it.

      • No. Because the case law is based around the date that reasonable steps were made to renounce citizenship, not the time citizenship lapsed.

        In fact if someone made reasonable steps to renounce and the country came back and said that they were still a citizen, they would still be entitled to be elected to Federal Parliament.

        • Yes, I see your point around the timeliness of the “reasonable steps”. I remain curious about the timeliness of her application. Yet another mystery of s44.

  3. What meaning should be attached to the words “entitled to the rights or privileges of a subject or a citizen of a foreign power”. For example, under Israeli law if I interpret it correctly, a Jew is automatically entitled to Israeli citizenship. Many other Australians may have similar entitlements in different countries. Does this created difficulties or might it be read down so that the provision is limited so entitled applies only if you have applied?

    • I imagine it would be read down to only apply if you apply for the entitlement. As well, as such blanket entitlements cannot be waived, the reasonable steps test may well be automatically satisfied.

    • My wife raised the same question.

      s44 is badly drafted. On the wording of the section, there is no allowance for “reasonable steps to renounce” and yes, I think on the wording of the section anyone automatically eligible for a foreign citizenship (including Jews in Israel) would be ineligible. The High Court will clearly refuse to interpret it that way, but it does mean s44 is hard to interpret as it depends on how far the High Court is willing to bend it to avoid a silly result.

  4. Hard to credit also that residence even into early adulthood in the foreign place has great significance. We can easily see that he who departs a country before he can walk has little attachment — but realistically many children reside with their parents well into their teenage years or early adulthood without any real choice.

  5. Its not only the nationality part of s44 that is involved.
    Both the potential replacements senators(Jordan Steele-John and Andrew Bartlett) may have problems under s44(iv).
    The issue with Steele-John is that he suffers from cerebral palsy and probably receives a disability pension.The question is whether that is a pension to which s44(iv) applies.
    In relation to Bartlett,he is employed by the College of Law of the Australian National University.The question in his case is whether he occupies an office of profit under the Crown.
    These issues were canvassed in a report of the House of Representatives Standing Committee on Legal and Constitutional Affairs in 1997.The link to that report is below:
    The section 44(iv) issues are referred to in section 3 of the report.In particular paragraphs 3.2,3.6,3.27,3.28,3.33 and 3.34 of the report should be read.
    The basis for the committee’s statement in para 3.34 was evidence from Professor Tony Blackshield and Professor Geoffrey Lindell.

    • Yes, although I think the Bartlett issue (his research fellowship) is much more plausibly a disqualification than the Steele-John issue (if indeed he does or did receive a disability pension.) Despite the concerns of Blackshield and Lindell, I don’t see how a disability pension is received at the Crown’s pleasure.

      • I think the problem is that because a payment is involved,rather than an action,the payment must be authorised by Parliament-so the fact that Parliament has authorised a payment(in this case via the Social Security Act) does not of itself mean the payment is not at the pleasure of the Crown-otherwise logically there would be no payments in that category.

        • Well, I think you could distinguish between legislation authorising payments to people who meet defined criteria and legislation authorising payments at the complete discretion of someone – the latter, I think, is what would disqualify someone.

  6. Jeremy,
    This discussion reminded me to look at the decision in Vass & Ors v Commonwealth of Australia 2000 FCA 47.
    Paragraphs 23 7 24 of that judgment support the argument that the payment is not “at pleasure” because no appropriation was made:-
    23 Notwithstanding the terms of the Defence filed on behalf of the Commonwealth, in their oral submissions, counsel for the Commonwealth conceded that “a failure to appropriate doesn’t extinguish a cause of action [in contract] against the Commonwealth”. Senior counsel spelled this out quite expressly, when he put:

    “If your Honour finds, contrary to our submissions, that there is a contract which is not invalid by reason of the Parliamentary Entitlements Act the Commonwealth’s defence does not involve as a separate proposition that the Appropriation Acts operate as a defence to the claim [in] contract.”

    Counsel also conceded that there was no suggestion the payments would not be for Commonwealth purposes; indeed, it was pointed out that the very fact some appropriations had been made in the Appropriation Acts to which I have referred (pursuant to which some substantial amounts were paid on account) indicated an acceptance of the position that Commonwealth purposes were involved.

    24 That a failure to appropriate did not provide any defence is clearly established by the decision in The State of New South Wales v Bardolph. There, Starke J said (at 502):

    “The Crown is dependent upon the supply granted to it by Parliament, and there is an express or implied term in its contracts that payment shall be made out of moneys so provided. But the existence of the contract is not conditional upon Parliamentary authority, or upon provision of funds by Parliament for the performance of the contract. … Constitutional practice … may prescribe conditions precedent to the making of contracts with the Crown, and so far as these conditions exist they must be observed. But otherwise contracts made on behalf of the Crown by its officers or servants in the established course of their authority and duty are Crown contracts, and as such bind the Crown. The nature and extent of the authority may be defined by Constitutional practice or express instructions, or inferred from the nature of the office or the duties entrusted to the particular officer or servant.”

    In the same case, Dixon J said (at 510):

    “Notwithstanding expressions capable of a contrary interpretation which have occasionally been used, the prior provision of funds by Parliament is not a condition preliminary to the obligation of the contract. If it were so, performance on the part of the subject could not be exacted nor could he, if he did perform, establish a disputed claim to an amount of money under his contract until actual disbursement of the money in dispute was authorized by Parliament. It is true that in many cases the existence of a fund out of which it is lawful to pay for such purposes as the contract may be supposed to serve might suffice as an authority for the expenditure of money to satisfy the contract, but in many others, where the contract was of an exceptional nature, some specific appropriation would appear to be demanded. It would defeat the very object of such provisions as those contained in the Judiciary Act, if, before the Courts could pass upon the validity in other respects of the subject’s claim against the Crown, it were necessary that Parliament should vote the moneys to satisfy it. … It would be strange if liability to suit upon contract was dependent upon the antecedent fulfilment of the condition that moneys have been made available to satisfy the claim.”

    In Seddon op.cit. at 89-90, New South Wales v Bardolph is discussed, and the learned author adds the comment:

    “Thus, it is theoretically possible that the government could resist the payment of a debt or damages ordered by a court on the basis that there was no appropriation to cover the amount. … Suffice it to say that it would be quite extraordinary if the government decided to defy a court order on this basis.”

    Similarly, in New South Wales v Bardolph, Dixon J refers (at 511-512) to a Privy Council judgment on appeal from a decision of Madden CJ of the Supreme Court of Victoria, who had held, of the Victorian equivalent of the Judiciary Act provisions enabling suit to be brought against the Crown in right of the Commonwealth, that it amounted to a special appropriation to answer any judgment. Their Lordships, in a passage which Dixon J cites with apparent approval, stated they “would not enter upon the consideration of that question, as they are satisfied that, the respondent having finally established the validity of his claim against the Crown for the sum for which he has recovered judgment, the provision necessary to satisfy that obligation will be readily and promptly made”. Finally, on this point, I note that Seddon op.cit. states (at 89) there is explicit recognition by Finance Regulation 44D of the proposition that absence of parliamentary appropriation of funds “does not affect the rights and liabilities of the parties to a contract”. This regulation (read with Regulation 44B) is expressed in terms that justify Seddon’s statement.

  7. The AEC is barred from asking about the constitution because the constitution isn’t Commonwealth law, so how can they ask on the nomination form if the nominee complies with S44? Isn’t the AEC asking that simple question with its tick box a breach of the electoral legislation and makes all nomination forms invalid?

    With Senator Singh she renounced her British citizenship 3 days before the election was held meaning she signed a false declaration on the AEC nomination form. She can not be prosecuted for that because it would jeopardise all elected in the last parliament and however many parliaments since the AEC started putting the tick box on the electoral nomination form.

  8. Those commenting on the Ludlum/Waters’ resignation generally presume the Senate vacancies will be filled by those next on the Greens’ state Senate tickets. I doubt the vacancies will be filled this way.

    1. Ludlum and Waters thinking they are citizens of a foreign country, McKim and others thinking they themselves not, or Israel and various other countries declaring certain classes of persons to be their citizens, does not establish whether or not they are disqualified to be an MP under section 44(i) of the Constitution.

    2. The resignations have created casual vacancies and the President of the Senate should initiate steps to have them filled in accordance with Section 15, notwithstanding any views the President might have as to whether Ludlum and Waters were ever validly elected Senators or of a hypothetical future referral by Senate to the Court of Disputed Returns of a question either on their qualfications, their election or on the vacancies.

    3. Senate cannot now refer to the Court a question on Ludlum and Water’s qualifications. Under section 376 of the Com Elecoral Act, Senate can only refer qualification related questions in respect of Senators. Ludlum and Waters are no longer senators. The Court only acquires jurisdiction to hear a question on referral of the question. On the other hand, a question on their election, if disputed, could be referred. However, the Court would not be able to proceed to hear the matter because the time for properly disputing an election is long past (sections 353(i), 355 and 358)). A question on the vacancies could also be referred, but since the Ludlum/Waters related vacancies have arisen because of resignations, the answer would (or should) be obvious, viz. a casual vacancy. It would be paradoxical for the Court while explicitly unable to hear a question on qualifications or disputed election to answer a question purported to be about a vacancy to first determine whether persons were qualified to be elected.

    4. That said, it has to be acknowledged that the Court did proceed to hear a referred question on Bob Day’s eligibility, even though Day too had resigned and was not a Senator at the time of the referral. The stutus of a person at points in time is important, as we know from the Court’s judgement in Re Culleton[2]. The Re Day case may have set a precedent, an unfortunate one, if it has. Perhaps the Court never fully considered whether the referral was valid and then whether it had jurisdiction to hear the Day question? The Court did err, in my bush lawyer’s view, in finding that Day was ineligible to be a senator not only for the period of the current parliament but for a period of time late in the previous parliament. The Court making findings about the historical eligibility of former senators based on a current Senate (and because the 2016 election was a double dissolution, Day was not continuously a senator during 2016). It is unclear to me what power the Court relied on to make this historical judgment.

    5. I would also argue the Court erred in how it filled the Senate place previously held by Culleton. In his case, Culleton was a senator at the time of the Senate’s referral of the question as to his eligibility to be elected and to sit as a senator. While empowered to find that he was not capable of being elected, the Court was wrong to conclude that he was never a senator. If he never was, Senate then had no power to refer a question on his qualification to the Court and the Court in turn had no jurisdiction to determine the question. It would have been preferable for the Court to have found Culleton, while not capable of being elected, was in fact returned as an elected senator and was indeed a Senator up until the point in time the Court ruled him ineligible. There are a number of instances in the Com Electoral Act where the wording implies this is the appropriate interpretation. For example, in section 374, which addresses the implications of the Court’s decisions, it says a person “shall cease to be a Senator” on the Court’s declaration that the person was not duly elected. Section 15 of the Constitution applies to all casual vacancies, not just those follow resignation or death.

    • I agree with 1 & 2, but I think 3-5 are less convincing. Section 376 permits references of ‘any questions’ about qualifications of MPs or ‘respecting a vacancy in either House of the Parliament’. The latter allows a reference about how to fill a vacant seat. Yes, the s. 15 of the Constitution proscribes a method for filling a vacant Senate seat, but it also refers to the Senator being ‘chosen’, and s. 44 says that some people are ‘incapable of being chosen’. So, I can see why the Court of Disputed Returns sees it as permitted to resolve whether the vacating Senator was capable of being chosen, making a declaration to that effect under s379(b) and relevant orders under s360. You’re right, though, that s374(ii) is against my reading.

  9. I lodged a petition in parliament 44 and then in parliament 45 asking about the eligibility of a member to sit because of possible dual citizenship. Senator Cormann and then Senator Ryan both advised basically that the responsibility for eligibility lies with the person nominating. Or use the Court of Disputed Returns.

    The Court of Disputed Returns is only available to votes in an electorate where the problem exists and must be actioned within 40 days of the poll being declared.
    The response both Ministers used is

    The rules for the CODR are set out in the AEC handbook –

    How does a normal person like myself query the election of an MP in another electorate or state? According to the Ministers I must trust MPs to tell the truth.

    • I’m not an election law expert, but as far as I know, the letter you received is correct. Outside of the 40 day window, the issue is in the hands of the Parliament (for disputing elections – which requires a referral from either house) and the police or other prosecutors (for pursuing incorrect answers on the nomination form – note that these would typically only be criminal if there is knowledge of the incorrectness.) Ordinary people like you and me only have the political process to pursue issues around s. 44.

  10. It now seems that some of the issues in this post will be addressed by the High Court as a result of a referral of now-resigned Resources Minister Matt Canavan. Reportedly, he may be an Italian citizen via his mother’s citizenship. Canavan’s case is more extreme than Ludlum’s and Waters’s as he was born in Australia (and, perhaps, may never have been in Italy at all – certainly, any trip there would have had no effect on his citizenship.)

    • Jeremy, a question, with apologies to you and all readers for my legal ignorance and for asking such a basic question:

      Given the importance of precedent and given the Court’s reluctance (at least it seems thay way to me) to consider legal arguments beyond those put to it by the parties, even in those cases involving questions referred by a House, how does the judicial system assure the people that the legal arguments relevant to a question regarding the eligibility of a government MP such as Canavan are thoroughly canvassed and well articulated during the hearing so that unfortunate precedents are not created? I presume the Commonwealth would be a party. The Attorney-General has said that preliminary legal advice to the Commonwealth suggests that Canavan probably is capable of being elected. Might the Commonwealth be supporting Canavan’s eligibility? If it were, from where would the Court get an “opposing” party?


      • The Court may permit interventions from other parties, e.g. another political party or, more likely, it would appoint an independent counsel to act as amicus curiae (friend of the Court) and present contrary arguments.

  11. Given the number of cases of dual citizenship which the Court will have to consider,I wonder whether one of the respondents will seek to re argue the correctness of the Court’s decision in Sue v Hill.
    These words in paras 48 & 49 of the judgment of Gleeson,Gummow and Hayne JJ are critical:-
    The expression “a foreign power” in s 44 does not invite attention to the quality of the relationship between Australia and the power to which the person is said to be under an acknowledgment of allegiance, obedience or adherence or of which that person is a subject or a citizen or entitled to the rights and privileges of a subject or citizen. That is, the inquiry is not about whether Australia’s relationships with that power are friendly or not, close or distant, or meet any other qualitative description. Rather, the words invite attention to questions of international and domestic sovereignty[50].

    49.Further, because the question is whether, at the material time, the United Kingdom answered the description of “a foreign power” in s 44(i), it is not useful to ask whether that question could have been easily answered at some earlier time, any more than it is useful to ask whether it is easily answered now. No doubt individuals will be directly affected by the answer that is given and, to that extent, their rights, duties and privileges may be affected. But any difficulty in deciding whether the United Kingdom did answer the description at the material time, or in deciding when it first answered that description, does not relieve this Court of the task of answering the question that now is presented.
    The question is, whether a person who was an undoubted citizen of Australia at the time the Constitution came into effect, can be deprived of the benefits of that citizenship by something other than an amendment to the Constitution itself.
    It should be remembered that Sue v Hill is a decision of the Court by a bare majority(Gleeson CJ,Gaudron,Gummow and Hayne JJ) and McHugh,Kirby and Callinan JJ dissented(but on the basis that s354 of the Commonwealth Electoral Act did not give any jurisdiction to the Court of Disputed Returns to answer the question).

    • I don’t see why anyone needs to re-argue Sue v Hill for this one. If Ludlum and particularly Waters decides to join in with Canavan, though, we would certainly see an argument around an extension of the Sykes v Cleary rule to cover people whom have not taken steps to renounce but for whom it was reasonable to be unaware of a need to renounce.

    • There will be no cause to re-open Sue v Hill in this matter. The majority in that case held two things:

      (1) That an election could be challenged on grounds of Constitutional invalidity under s. 44 by way of a petition under the Commonwealth Electoral Act and not just by way of referral from the house of Parliament concerned; and

      (2) That the United Kingdom was a “foreign power” for the purposes of s. 44 of the Constitution.

      The first holding will be irrelevant to any prcoeedings in respect of Senator Canavan, as it will be a referral from the Senate not a petition.

      The second holding will be irrelevant because it concerned the unique issue of whether the United Kingdom, which was once undoubtedly not a “foreign power” in respect of Australia, was by that time, a “foreign power”.

      The chance of Senator Canavan or the government seeking to argue that Italy does not meet the definition of a “foreign power” is negligible.

      Further, no person is being deprived of any benefits of citizenship otherwise than by reason of the Constitution itself.

      • Jason,my comment about reopening Sue v Hill relates to Ludlum and Waters,not Canavan.Despite resigning,their cases must go to the Court to determine whether they were validly elected.Had they been senators elected in 1901 they would not have been subjects of a foreign power.The criticism to be made of Sue v Hill is that Heather Hill was deprived of an entitlement to stand which:
        (a) did not result from an amendment to the Constitution
        (b) did not result from any specific provision in legislation
        (c) was unknown in law prior to the Court’s decision
        Now that unfairness is manifest in the common law-should it be present in a Constitution?

        • None of those criticisms provides any basis to doubt or re-open Sue v Hill, in my opinion.

          The idea that persons who, had they been alive in 1901, would have been entitled to stand for election, is an argument which cannot be seriously countenanced.

          In answer to each of your paragraphs:
          (a) it resulted from the terms of the Constitution itself.
          (b) as for (a)
          (c) this does not make sense; if a Court only made decisions which were previously “known” it would never evolve or make decisions on novel situations. The history of the common law and the history of Constitutional jurisprudence is of determining the rights and liabilities or litigants in all manner or new and different situations not previously considered by Courts.

        • Further, to suggest that former Senators Ludlum and Waters may not have been ineligible on the basis that New Zealand and Canada were not foreign powers in 1901, is to suggest that dual nationals of any of the many countries which are former British colonies, including countries that are not currently on friendly terms with Australia, would not be foreign citizens.

          It is inconceivable that dual nationals of Bahrain, Myanmar or Zimbabwe, for example, are eligible.

  12. What if Putin (acting within his authority under Russian law) declared all candidates for the next federal election irrevocably citizens of Russia?

    Would all such candidates need to rely upon the invented “reasonable steps” exemption?

    Or is the better answer that, as the Constitution is an Australian law, whether or not one is a citizen of another country is (for the purposes of Australian law) to be determined in accordance with the law of Australia, not the law of that other country?

    We could then say that the candidates are not disqualified because the creation of citizenship in the example suggested above is not recognized under Australian law. We could then also develop a body of Australian law that appropriately addressed the different fact situations that arise. That could include a from of “reasonable steps” test to be applied in appropriate cases.

    The end result would be that eligibility to stand would depend upon the application of Australian law, not the law of another country over which we have no control.

    • Hi Andrew, This was addressed in Sykes v Cleary. Citizenship us determined by the law of the foreign country, not Australia. However, the reasonable steps test is determined by the Constitution. The reasonable steos would have to be satisfied if a foreign power maliciously gave an MP citizenship. What would be needed – formal efforts to renounce, s public rejection, nothing at all – I’m these circumstances has not yet been determined by the High Court.

      • It wouldn’t be a “reasonable steps” test. It would have to be a “malicious conferment” test or something like that (as I think you are suggesting).

        In any event, as an interpretation of s44i, any such test is a mere fiction unless the Australian law approach suggested by my original comment is adopted.

        The High Court in Sykes is plainly wrong. Hopefully, when the issue next comes before it, the Court will admit as such and start applying Australian law rather than the law of some other country.

  13. Jeremy – to clarify my last comment, The “reasonable steps” test is applying Australian law to determine whether a person is a citizen of another country for the purposes of s44i. The High Court’s decision in Sykes is inherently inconsistent in that regard. Once that is conceded, an appropriate set of rules/guidelines for the application of 44i can be developed.

  14. One point for discussion-under s41 of the Trans Tasman Proceedings Act 2010,a subpoena issued by a New Zealand court or tribunal may be served in Australia.Under s42,the person so served must comply.If they do not,however,the power to punish for contempt is reserved to the Federal Court:s43.
    What impact,if any,has the provisions of this Act on the question of whether New Zealand is a foreign power within the meaning of s44 of the Constitution?
    On the one hand,it can be argued that the Act does not affect the issue of Australian sovereignty because it is authorised by an Australian act.On the other,an Australian citizen must comply with an order of a court of another country.
    I would be interested to hear everyone’s views on this.

    • The requirement to comply with a curial requirement of the foreign country (New Zealand) is imposed by the laws of Australia and is punishable by the courts of Australia.

      In the situation you describe, the requirement is placed on the Australian citizen by the domestic law of Australia. The laws of New Zealand relating to compliance with the requirements of New Zealand courts have no independent application within Australia.

      • Jason,
        What you say is correct-but what I am trying to tease out is why,when a citizen is so directed by the laws of his own country,the country whose law it is must nevertheless be considered foreign.Let us suppose for arguments sake,the direction of the Australian Parliament is not only to obey one discrete provision of a foreign law,but a whole series of laws which are a part cession of sovereignty?

        • There are many such requirements in the domestic law of Australia. It does not make involve a cession of sovereignty (simply an exercise of the power of the Parliament to legislate) nor does it make the foreign country any less foreign.

  15. for those curious about Tony Abbott

    This is my final blog on it, it wraps it all up. The last paragraph details the final phase of trying to get an MP to show he complies with out constitution.

    The constitution cant be changed so the laws governing the Australian Electoral Commission must be changed to allow them to demand proof of compliance at nomination time. I know of 2 nominees who were dual citizens, they didnt get elected but nominated. ONe in Tasmania senate, one in Warringah

  16. The additional arm of S44 has been overloooked. Whilst a citizen of another country is ineligible- the section also includes references to rights and priveleges of a foreign power. I would include the rights to property/ passports/ work permits to be included under this arm. This could well include people whose relatives have rights or interests in another country which flow on to a candidate for parliament- even if a citizen has only Australian citizinship.
    The section is poorly defined – perhaps the parliament could assist by defining the terms foreign power, rights and privelges, dual nationals in the Electoral Act and modify the interpretations of S44

    • Parliament can’t legislate interpretation of any section of the Constitution.

      • Doesn’t s 51 (xxxvi) in conjunction with s47 authorize Parliament to legislate wrt the handling and determination of any and all questions relating to members’ qualifications? If it does, why does that power not extend to the specification of what qualifications are to be beyond questioning and determination either by a House or by the CODR being instead legislatively determined by Parliament through definition of what would disqualify a person? Are you saying that if the constitutionality of such legislation were challenged in the Hign Court in would likely be found unconstitutional? In that event, Parliament could ( but probably wouldn’), amend the Judiciary Act and alter the High Court’s jurisdiction.

        As well s34 (and s16) with s 51(xxxvi) give Parliament the power to specify qualifications for becoming an MP. This surely allows Parliament to legislate who is to be excluded, if not who is to be included.

        • Parliament’s power to legislate does not include the power to override the Constitution (this is implicit in every head of power the Constitution permits Parliament to legislate under) nor to require the High Court to make particular judicial findings about the law (this would breach separation of powers, and while this is not explicit in how Chapter III of the Constitution is written there is rather a lot of High Court precedent on the subject).

          • Well not if you are interpreting the Constitution on an ad hoc basis- It is only another Act to be interpreted by the standards set for all other Acts of Parliament -How does your narrow reading of Section 44 compare with Section 34 which mentions the UK- and allows Parliament to amend as required.

  17. Sue V Hill was about a person who as an adult naturalised as an Australian and still had retained her UK nationality. Hill knew she had dual citizenship when she ran for election. She procured Australian citizenship as an adult and thus was in conflict with section 44(i) of the Australian Constitution. Hill used her UK passport as an adult. Sykes V Cleary was questionably decided as they were also adults that naturalised as Australians retaining their birth nationalities. Abbott as an adult naturalised as an Australian and subsequently knowing the importance of relinquishing UK nationality before election, as per Twitter (ofcourse he one day could get it back as the UK allows this!). Roberts was also an adult when he became Australian. Thus, these cases are not applicable to the Waters, Ludlam and Canavan matters. Australian law should have precedence in Australia over international citizenship claims placed on minor Australians and subsequently should be prospectively protected after they attain adulthood. These children did nothing of their own accord to get that other non-Australian nationality or their Australian nationality. Waters and Ludlam were minors when they were registered as Australian. Canavan was born in Australia. Australian children do not have choices of birth or parentage. Australian law including the Constitution should be interpreted to protect Australian minors by heightening their Australian citizenship in Australia as paramount to any other international citizenship claims by Australian children being made a protected class in Australian law.

  18. Great article – thank you for this.

    The High Court may have to reconsider aspects of the decision in Skypes v. Cleary.

    It is inconceivable that the Constitution of Australia could be interpreted to mean that the laws of a foreign country could interfere with Australia’s sovereignty and democratic process.

    Ultimately the question should be:

    Does the law of Australia recognize the person as a citizen of another country. It would be very simple to add to the Elections law a provision that said in effect:

    “Should the laws of a foreign country deem an Australian citizen to be a citizen of that country, then Australia will use it’s own law to determine whether that foreign citizenship is recognized in Australia.”

    The alternative is that (as a previous commenter noted) another country would impact Australia’s political process by simply declaring a person to be a citizen of that country.

    It would be a new and improved way to overthrow the Government of Australia!

  19. Jeremy

    Practical question for you: who has standing to refer these types of matters to the High Court? Is it only on a motion from the House or Senate, or can others do so?

  20. Because I am in the same position as Barnaby (Australian born, New Zealand father), I had a look at the NZ stuff. It is far from clear to me that Barnaby is in fact a dual citizen, although he is entitled to become one. To exercise that entitlement, he must register as a citizen (a conscious act). Further, he has then to prove his entitlement by supply of appropriate documents, again a conscious act. I would have thought that under law, you do not become a New Zealand citizen until you are registered as one. I stand to be corrected by wiser minds.

    • or entitled to the rights or privileges of a subject or a citizen of a foreign power

      The words that will catch a lot in dual citizenship.

      Julia Banks and Nick Xenophon aren’t Greek citizens but are Greek nationals and entitle do the right of citizenship.

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