The Mikado in the Constitution: Re Canavan; Re Ludlam; Re Waters; Re Roberts [No 2]; Re Joyce; Re Nash; Re Xenophon [2017] HCA 45

Mikado. Ha! ha! ha! I forget the punishment for compassing the death of the Heir Apparent.

Ko-Ko, Pooh-Bah & Pitti-Sing. Punishment.

Mikado. Yes. Something lingering, with boiling oil in it, I fancy. Something of that sort. I think boiling oil occurs in it, but I’m not sure. I know it’s something humorous, but lingering, with either boiling oil or melted lead. Come, come, don’t fret — I’m not a bit angry.

Ko-Ko. If your Majesty will accept our assurance, we had no idea—

Mikado. Of course —

Pitti-Sing. I knew nothing about it.

Pooh-Bah. I wasn’t there.

Mikado. That’s the pathetic part of it. Unfortunately, the fool of an Act says “compassing the death of the Heir Apparent.” There’s not a word about a mistake —

Gilbert & Sullivan’s Mikado is a staple of both amateur theatres and Australian criminal law classes. Law lecturers routinely quote it (or, in some unlucky classes, sing it) to students because it illustrates a common problem in statutes: drafters’ penchant to ignore people’s minds when they devise rules of behaviour.

A case in point is s44(i) of Australia’s federal Constitution. Most constitutional provisions are about institutional, not individual, behaviour. But s44(i), which determines when otherwise eligible people are disqualified from Australia’s federal parliament, states:

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.

This provision duly identifies a situation the drafters wanted to avoid – a person with certain status in a foreign country in a position of (legislative) power in Australia – but says nothing at all about what (if anything) is going on inside the mind of that person.

Ko-Ko, Pitti-Sing & Pooh-Bah. No!

Mikado. Or not knowing —

Ko-Ko. No!

Mikado. Or having no notion —

Pitti-Sing. No!

Mikado. Or not being there —

Pooh-Bah. No!

Mikado. There should be, of course —

Ko-Ko, Pitti-Sing & Pooh-Bah. Yes!

Mikado. But there isn’t.

Ko-Ko, Pitti-Sing & Pooh-Bah. Oh!

Mikado. That’s the slovenly way in which these Acts are always drawn. However, cheer up, it’ll be all right. I’ll have it altered next session.

The central holding of Re Canavan; Re Ludlam; Re Waters; Re Roberts [No 2]; Re Joyce; Re Nash; Re Xenophon [2017] HCA 45 is that s44(i) means exactly what it says and what it doesn’t say:

Section 44(i) does not say that it operates only if the candidate knows of the disqualifying circumstance. It is a substantial departure from the ordinary and natural meaning of the text of the second limb to understand it as commencing: “Any person who: (i) … knows that he or she is a subject or a citizen …”

The High Court unanimously rejected suggestions from the parties to the seven references before it that it read requirements of voluntariness (the Attorney-General’s suggestion), wilfulness (ex-MP Barnaby Joyce’s) or constructive knowledge (the Green ex-Senators’) into s44(i).

So much, so constitutional, you may say. But reading in words (aka ‘implications’) into constitutional provisions is very standard constitutional fare. Implications were the entire basis of the High Court’s decision landmark decision a week before the Citizenship 7 case, striking down some Tasmanian anti-protest laws. As well, given that s44(i)’s accepted purpose is to avoid an MP’s dreaded ‘split allegiance’ between Australia and some other nation, some sort of knowledge requirement (constructive, actual, whatever) of that foreign link would make a lot of sense.

The case for reading in a mental requirement into s44 is especially strong because the provision doubles up as something close to a criminal offence, complete with its own (initial) penalty provision:

46 Penalty for sitting when disqualified Until the Parliament otherwise provides, any person declared by this Constitution to be incapable of sitting as a senator or as a member of the House of Representatives shall, for every day on which he so sits, be liable to pay the sum of one hundred pounds to any person who sues for it in any court of competent jurisdiction.

As all criminal law students learn, Australian courts routinely read mens rea requirements into criminal offence provisions, applying either general criminal codes (often based on one drafted by Samuel Griffith, one of the Constitution’s drafters) or a detailed system set down by the High Court itself in a 1985 drug offence decision. So, Australian criminal law lecturers use The Mikado to illustrate exactly how criminal offences aren’t interpreted by Australian courts.

The High Court has now unanimously ruled that The Mikado is good law when it comes to s44. ‘Mistake’, ‘not knowing’, ‘having no notion’, even ‘not being there’ (like now ex-Senator Fiona Nash, who has never been to the United Kingdom but has nevertheless lost her elected position and career because of her citizenship there) are no excuse under s44(i). Australian criminal lawyers label this  ‘absolute liability’. No mistake or ignorance, no matter how reasonable, understandable or genuine, makes the slightest difference to s44’s application. As Yoda instructed young Skywalker: ‘do or do not, there is no try’. As Luke didn’t ask, why?

Mikado. The idiot who, in railway carriages, scribbles on window panes, we only suffer to ride on a buffer in Parliamentary trains. My object all sublime I shall achieve in time— to let the punishment fit the crime, the punishment fit the crime;  And make each prisoner pent unwillingly represent a source of innocent merriment, of innocent merriment!

Earlier this year, the High Court pronounced two other Senators ineligible for election under different paragraphs of s44, a punishment that in no way fit their respective crimes (having a tussle over some keys, taking out a lease.) The Court’s mantra then as now was the need for ‘order and certainty in the electoral process’ :

[T]o accept that proof of knowledge of the foreign citizenship is a condition of the disqualifying effect of s 44(i) would be inimical to the stability of representative government. Stability requires certainty as to whether, as from the date of nomination, a candidate for election is indeed capable of being chosen to serve, and of serving, in the Commonwealth Parliament. This consideration weighs against an interpretation of s 44(i) which would alter the effect of the ordinary and natural meaning of its text by introducing the need for an investigation into the state of mind of a candidate.

Investigation leads to uncertainty. Uncertainty leads to instability. Instability leads to… inimicalness.

The Court identifies two sorts of uncertainty. One is ‘practical’:

The practical problems involved in applying the standard for which Mr Joyce MP and Senator Nash argue would include the difficulties of proving or disproving a person’s state of mind. Not the least of these difficulties would be the regrettable possibility of a want of candour on the part of a candidate or sitting member whose interests are vitally engaged. And during the fact-finding process the entitlement of the member to continue to sit in Parliament would be under a cloud.

This concern is familiar ground for criminal law students, one of whom always raises a hand during the first class on mens rea to ask how anyone can prove what is in someone else’s mind. The answer is that our entire lives and society rest on our ability to draw reliable inferences about people’s thoughts. And the criminal justice system is testament to courts’ ability to make firm findings about mental states, typically ones far more transient, more extreme and less evidenced than anything that would ever trouble the Court of Disputed Returns (and often carrying much more severe consequences.) When (now) former Senator Malcolm Roberts testified before the Court (to observers’ ‘innocent merriment’), Justice Keane had no trouble making confident findings that he knew of his pre-1974 citizenship status and a’substantial and real prospect’ of his dual citizenship  (with no need to doubt his sincerity.)

The Court’s other concern is ‘conceptual’:

[T]he state of a person’s knowledge can be conceived of as a spectrum that ranges from the faintest inkling through to other states of mind such as suspicion, reasonable belief and moral certainty to absolute certainty. If one seeks to determine the point on this spectrum at which knowledge is sufficient for the purposes of ss 44(i) and 45(i), one finds that those provisions offer no guidance in fixing this point.

This too is familiar ground in criminal law, with courts routinely filling in the gaps in offence provisions, drawing on a range of well-established alternative fault standards and the usual tools of statutory interpretation. Even when courts make the rare finding that a provision is one of absolute liability, they nearly always insist on a requirement for voluntariness for all conduct, including states of affairs like citizenship. Just a week before the Citizenship 7 decision, the High Court itself insisted  in its Koani judgment that criminal responsibility ‘under the Code, as under the common law, cannot be founded upon an unwilled act’, even a negligent one. And yet, the same Court casually dismissed the Attorney-General’s straightforward suggestion of a similar voluntariness requirement for s44(i) as depending ‘upon the unstable distinction between overt voluntary acts and conscious omissions.’

Instead, the Court adopted ex-MP Tony Windsor’s submission that ‘the operation of the constitutional guarantee of single-minded loyalty provided by s 44(i) should not be made to depend upon the diligence which a candidate brings to the observance of the provision’. But, as every criminal law student soon learns, incorporating responsibility requirements usually reduces, rather than increases, a provision’s uncertainty.

Consider the case of Senator Matthew Canavan, who was pilloried in the media for blaming his predicament on his mother’s application for citizenship. The expert evidence put before the High Court doubted that his mother’s paperwork (for registration as an Italian citizen abroad) had any effect on anyone’s citizenship. Rather, ‘on one view’ Canavan had always had Italian citizenship due to the retroactive effect of a Italian ruling three years after his birth. But on ‘another view’, ‘the more reasonable interpretation of Italian law, in line with the adoption of “the subjective conception of citizenship” under the Italian Constitution’, is that he only ever obtained a ‘potential citizenship’ that required voluntary ‘activation’. The High Court threw up its hands, concluding that ‘one could not be satisfied that Senator Canavan was a citizen of Italy.’ Nor could one be satisfied that he wasn’t.

In contrast to the unknowable issue of Canavan’s actual citizenship status, there was no doubt at all about what he knew of that status. The Court observed that it was uncontroversial that ‘[b]efore 2006, it had not occurred to Senator Canavan that he or his siblings might be Italian citizens’ and that after that date, he deliberately declined to follow his family in seeking registration. In his case – and, I’d suggest, in many cases involving difficult legal systems – a subjective test is a much more certain basis for someone’s ‘split allegiance’ than the legal test the current Court has adopted in the name of stability.

Pooh-Bah. Our logical Mikado, seeing no moral difference between the dignified judge who condemns a criminal to die, and the industrious mechanic who carries out the sentence, has rolled the two offices into one, and every judge is now his own executioner.

Nanki-Poo. But how good of you (for I see that you are a nobleman of the highest rank) to condescend to tell all this to me, a mere strolling minstrel!

Pooh-Bah. Don’t mention it. I am, in point of fact, a particularly haughty and exclusive person, of pre-Adamite ancestral descent. You will understand this when I tell you that I can trace my ancestry back to a protoplasmal primordial atomic globule. Consequently, my family pride is something inconceivable.

The least edifying part of the very unedifying public debate about the Citizenship 7 is the recurrent claim that the entire crisis is due to seven MPs’ failure to ‘do their homework’. The seven High Court justices, none of whom have ever faced any ancestry-based test to qualify for any of their occupations, parroted this position in their judgment:

[W]hile it may be said that it is harsh to apply s 44(i) to disqualify a candidate born in Australia who has never had occasion to consider himself or herself as other than an Australian citizen and exclusively an Australian citizen, nomination for election is manifestly an occasion for serious reflection on this question; the nomination form for candidates for both the Senate and the House of Representatives requires candidates to declare that they are not rendered ineligible by s 44.

In my own online debates with the ‘do your homework’ brigade, I’ve observed that those making such claims are rarely born overseas and none seem to have parents born outside of the developed world. All of the present High Court were born in Australia, as were all but five of their predecessors. The late Sir Ninian Stephen, born in Oxfordshire, was the lone naturalised Justice. Three early judges emigrated from Wales and Ireland (each serving before the advent of Australian citizenship), while Heydon J was born to an Australian in Canada (just like now ex-Senator Larissa Waters was, four decades later.)

I’m fortunate to have never contemplated nominating for elected office. But, like many Australians, the recent debate has caused me to ponder my own status under s44(i). Despite being born in Sydney and long assuming that I was exclusively an Australian citizen, my eligibility for election to my own nation’s Parliament proves to be quite a puzzle.

The simplest half of the puzzle is my father’s birth as a German citizen in Frankfurt in the 1930s. Thanks to  Adolf Hitler, whose 1941 Eleventh Decree to the Law on the Citizenship of the Reich stripped my Jewish father of his citizenship years after he arrived in Australia, I am certain I’m no German.

But there is a complication: Article 116(2) of Germany’s Basic Law provides that people in my father’s position ‘and their descendants, shall on application have their citizenship restored’. Although I haven’t applied, it seems arguable that I am nevertheless ‘entitled to the rights or privileges of a subject or a citizen of a foreign power’ (a phrase that the current High Court says is part of the same ‘limb’ as s44(i)’s ban on foreign citizens.) This interesting legal question can only be tested if someone like me is first elected as an MP and then has her eligibility challenged in the Court of Disputed Returns.

The trickier part of the puzzle is my mother. She was born during World War Two somewhere on the Soviet side of the front. However, precisely where in the former Union she was born (and hence her potential current foreign citizenship in a former Soviet Republic) is something that only my long-dead grandparents know for sure. My mother obviously can’t confirm her birthplace with any certainty. Her earliest memories are crossing countless borders as a war refugee. (My grandparents themselves were very vague about the details and timelines of their respective wartime ordeals. It is obvious that they were awful.) While none of these facts concern me at all, every single detail would be crucial to determining my current eligibility under s44(i).

The current High Court’s judges (some of whom would also be my future electoral executioners) saw fit to smugly declare:

It is necessary to bear in mind that the reference by a house of Parliament of a question of disqualification can arise only where the facts which establish the disqualification have been brought forward in Parliament. In the nature of things, those facts must always have been knowable. A candidate need show no greater diligence in relation to the timely discovery of those facts than the person who has successfully, albeit belatedly, brought them to the attention of the Parliament.

But, if I was ever elected to a very narrowly divided parliament, then there would be a good many people with much better resources and motivation than me to solve the mystery of my citizenship. Somewhere, there may be an old Soviet record, or a wartime refugee camp form, or a surviving acquaintance of my grandparents, or a genetic link to some ‘atomic globule’ in Central Asia, that could belatedly confirm me as a citizen of one of a potential dozen or so nations, each with their own highly complex and shifting citizenship laws. My own ignorance of these matters (no matter how diligent my personal search) would be absolutely irrelevant to my future eligibility,. So holds Re: Canavan.

And for me to do my constitutional ‘homework’ would, at a minimum, be punishingly expensive, much more so than the truly ridiculous sums that Sam Dastyari had to pay to (probably) rid himself of his Iranian citizenship. Worse, there is every likelihood that I would be unable to ever be sure that I wasn’t a foreign citizen, much less satisfy any party contemplating nominating me. The likely result of any ‘serious reflection on the question’ of my eligibility is that nominating me would not be worth the risk. And I am hardly an unusual case (outside of the ‘came with the First Fleet‘ set, that is.)

Ko-Ko. What are you talking about? I can’t execute myself.

Pooh-Bah. Why not?

Ko-Ko. Why not? Because, in the first place, self-decapitation is an extremely difficult, not to say dangerous, thing to attempt; and, in the second, it’s suicide, and suicide is a capital offence.

Pooh-Bah. That is so, no doubt.

Pish-Tush. We might reserve that point.

Pooh-Bah. True, it could be argued six months hence, before the full Court.

Ko-Ko. Besides, I don’t see how a man can cut off his own head.

Pooh-Bah. A man might try.

Pish-Tush. Even if you only succeeded in cutting it half off, that would be something.

Pooh-Bah. It would be taken as an earnest of your desire to comply with the Imperial will.

Despite refusing to read a knowledge requirement into the ‘literal and ordinary meaning’ of s44(i), the current Court enthusiastically read down the section to incorporate what it called a ‘constitutional imperative’ that the drafters somehow forgot to include:

It is the evident intention of the Constitution that those of the people of the Commonwealth who are qualified to become senators or members of the House of Representatives are not, except perhaps in the case of a person ‘attainted of treason’ within the meaning of s 44(ii), to be irremediably disqualified. They have the entitlement to participate in the representative government which the Constitution establishes.

However, despite purporting to adopt this statement from ‘the views of a majority of the Justices in Sykes v Cleary, the authority of which was accepted by all parties’, the current Court baulked at sone additional words in the Sykes plurality’s analysis:

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 current Court quoted just a sentence fragment from this paragraph from Sykes and then dispensed with it altogether by observing that it didn’t avail a Greek man who migrated to Australia as an adult.

The Court read Sykes especially narrowly, holding that the exception to s44(i) is purely a function of the qualities of the country with which an elected MP shares citizenship, not her diligence in attempting to comply with the Constitution’s requirements.  It provided just one clear example of how the imperative operates, citing:

a requirement of foreign law that the citizens of the foreign country may renounce their citizenship only by acts of renunciation carried out in the territory of the foreign power. Such a requirement could be ignored by an Australian citizen if his or her presence within that territory could involve risks to person or property.

But otherwise, the details of the ‘constitutional imperative’ are left unresolved.

Expense? Time? Bureaucracy? Language barriers? Inept consular advice? Their relevance rests on this passing observation:

It may be that not all foreign states afford their citizens the levels of assistance in relation to the ascertainment and renunciation of their citizenship that is available from states such as most members of the Commonwealth of Nations. Some foreign states may be unwilling or unable to provide necessary information in relation to the ascertainment and means of renunciation of their citizenship.

Malcolm Roberts’s various inept efforts to rid himself of British citizenship by email (which in reality required a form, citizenship documents and an exorbitant fee) didn’t rate even a passing mention in the Court’s explanation of how  he failed the s44(i) test.

What completely belies the  High Court’s supposed goal of ‘certainty’ is the impossibility of testing this constitutional imperative until after an MP with a tricky dual citizenship is elected:

It is not necessary to multiply examples of requirements of foreign law that will not impede the effective choice by an Australian citizen to seek election to the Commonwealth Parliament. It is sufficient to say that in none of the references with which the Court is concerned were candidates confronted by such obstacles to freeing themselves of their foreign ties.

But, of course, six of the candidates had citizenships with friendly English speaking countries (and the seventh with a developed country with long-standing links to Australia.)

The Court – which a week earlier struck down Tasmania’s vague anti-forestry protest laws because of their ‘effect of inhibition or deterrence on the freedom’ of political communication – seems entirely blind to the  ‘significant deterrent effect’ its judgment will have on a sizeable fraction of Australians who might otherwise seek to exercise their right to participate in Australia’s representative system of government.

Just imagine a future federal election, called (as they often are) by surprise:

  • First, many Australians will contemplate a stab at elected office. For most, it’s just a matter of finding the deposit and some signatures. But for others with a bit too much foreign blood, it’s a time for ‘serious reflection’ and even more serious expense. For many of those, there’ll be far too little time to feasibly nominate.
  • Next, the parties race to finalise their nominees. The faceless men will face the following non-quandary: should they punt on the Australian with immigrant parents from tricky countries, or a multi-generational Australian? Backers of the true blue Aussie will ponder a whisper campaign about her opponent’s ‘High Court problem’.
  • Then the nomination date closes. The media will immediately demand that all candidates furnish ‘proof’ that they aren’t dual citizens. Naturally, it’s the ‘ethnic’ candidates who will come under the closest scrutiny. If any baulk at detailing their heritage, their political opponents will dog whistle by quoting the Kiefel Court’s words on ‘split allegiances’.
  • At last, the election result is announced and it’s a close one! Rather than negotiate over a minority or coalition government, the parties hurriedly conduct background research into a small subset of suspect opposition MPs, while the media frets about the party’s carelessness in nominating them. The internet buzzes with speculation, founded or otherwise, about the veracity of the foreigners’ paperwork, speculation which never entirely fades.
  • Finally, the new government forms. But wait! Given academic speculation that ineligible Ministers’ decisions can ‘possibly’ be challenged, should the new PM really risk appointing an MP whose status isn’t 100% certain to the Cabinet? If she’s a risk-taker, the new PM may take a punt on some of the new ethnic MPs, but certainly not for a senior position.

I hope my prediction will be wrong (again). I am confident that, one day, despite all this, we will have a Prime Minister from a minority ethnicity. But can we  be sure that an outdated constitutional provision won’t tarnish, or even undercut, that crucial moment in our nation’s history?

Ko-Ko. I see. Come over here, where the Chancellor can’t hear us. Now, as my Solicitor, how do you advise me to deal with this difficulty?

Pooh-Bah. Oh, as your Solicitor, I should have no hesitation in saying ‘Chance it–’

Ko-Ko. Thank you. I will.

Pooh-Bah. If it were not that, as Lord Chief Justice, I am bound to see that the law isn’t violated.

Ko-Ko. I see. Come over here where the Chief Justice can’t hear us.  Now, then, as First Lord of the Treasury?

Pooh-Bah. Of course, as First Lord of the Treasury, I could propose a special vote that would cover all expenses, if it were not that, as Leader of the Opposition, it would be my duty to resist it, tooth and nail. Or, as Paymaster-General, I could so cook the accounts that, as Lord High Auditor, I should never discover the fraud. But then, as Archbishop of Titipu, it would be my duty to denounce my dishonesty and give myself into my own custody as First Commissioner of Police.

Ko-Ko. That’s extremely awkward.

Professor George Williams, who (unlike me) correctly predicted the government’s  humorous but lingering predicament, sees only two ways out of this debacle:

One is to conduct an audit of the eligibility of all parliamentarians to identify those MPs who may now be disqualified due to the High Court ruling. There is now sufficient certainty about the state of the law on section 44 to enable this to be conducted immediately. The second option is to recognise that section 44 of the Constitution is ill-suited to modern times and should be amended.

These are lousy options. The first (which matches a similar call by some cross-benchers) would basically guarantee my above prediction, and indeed accelerate it. The second assumes that we live in a bizarro Australia where sensible proposals for constitutional amendments aren’t routinely derailed by politicians seeking short-term political gains.

I have two alternative proposals. The first is to think outside the (Australian) box. Why not negotiate with the major sources of Australian immigrants – the UK, New Zealand, India and China, for starters – to have them insert a provision into their own citizenship laws that instantly revokes the citizenship of Australians who nominate for a federal election, without fees, paperwork and, crucially, the nominees’ awareness of their dual citizenship? (The nomination form could duly warn nominees of this possibility.) To be sure, this would be a highly embarrassing request for one government to make to another, but it would provide the clearest legal way to reduce the continuing instability imposed by s44(i), absent a debilitating constitutional campaign.

Not every foreign country will change its laws to suit Australia’s quirks, so the problem would remain. My second proposal is to shift the ‘homework’ burden to all Australians, rather than just the foreign ones. Much as the Mormons’ penchant for posthumous baptisms has led Utah to expertise in genealogy, it seems likely that s44(i) will enrich many Australian lawyers in the esoteric field of foreign citizenship law. But there should be no need for nominees, or even political parties (especially minor ones) to bear the enormous costs of finding and engaging those experts, much less sorting through and acting on their (potentially conflicting) advice. Rather, the government should fund an independent agency that provides a ‘foreign citizenship assessment and renunciation service’ to all prospective nominees for federal election who make a timely request. It will be for that service to research all relevant laws and each potential nominee’s background, do all the legwork (aided, perhaps, by inter-governmental co-operation) and bear all the expense of effecting a renunciation (or reasonable steps to that end.)

To be clear, both of these proposals are expensive, but s44(i)’s considerable financial costs are already imposed on prospective nominees and their parties, well-resourced or not.  Now that our nation’s grandest Pooh-Bahs, judicial and otherwise, have opted to follow the script of a thinly-disguised lampoon of British bureaucracy, such extreme measures have truly become a ‘constitutional imperative’.

Mikado. Now, let’s see about your execution — will after luncheon suit you? Can you wait till then?

Ko-Ko, Pitti-Sing & Pooh-Bah. Oh, yes — we can wait till then!

Mikado. Then we’ll make it after luncheon.

Pooh-Bah. I don’t want any lunch.

Mikado. I’m really very sorry for you all, but it’s an unjust world, and virtue is triumphant only in theatrical performances.

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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.

62 thoughts on “The Mikado in the Constitution: Re Canavan; Re Ludlam; Re Waters; Re Roberts [No 2]; Re Joyce; Re Nash; Re Xenophon [2017] HCA 45

  1. A shame we didn’t have Messrs Gilbert and Sullivan write the Constitution in the first place – It seems its interpretation seems to follow any and all of their musical constructs.

    Perhaps the rules for High Court Justices’ eligibility should be reworked to include provisions that they must also be eligible to take a place in the Federal Parliament.

  2. “But reading in words (aka ‘implications’) into constitutional provisions is very standard constitutional fare. ”
    Is it?It wasn’t until cases like Lange.
    James Allan made,to my mind, a telling point about the recent case of Brown v Tasmania that the legislation was held invalid without any reference to any specific provision of the Constitution.

    • It was long before Lange. All the Chapter 3 cases are based on implications, I think, as are those on intergovernmental immunity. Maybe that’s a bad thing, but it provides no reason to draw the line at s44 (which is also subject to an implied constitutional imperative.)

      • I don’t think the constitutional imperative is implied in the same sense as those other cases involve implications. It arises by way of a reconciliation of ss 34 and 44.

    • With all respect Jeremy, this is a pretty scathing piece to aim at the legal reasoning of a unanimous full bench of the High Court without giving the least bit of defence to their side of the argument, and neither of your finishing proposals are the least bit practical (although I’m sure the suggestion of negotiation with foreign governments to have them pass laws to help us out with an arcane constitutional point was at least a little bit tongue in cheek?! )

      Given the hoops the poorest and least educated in our society are asked to jump through in welfare and immigration matters, in the absence of a constitutional amendment people standing for election are just going to have to take a minute to think “where was I born? where were my parents born? Is it possible I’m a foreign citizen?” and that’s not an unreasonable outcome. It’s not for the High Court to decide that holding dual citizenship is no longer as big a deal as it might have been thought to be in 1901; until the constitutional change is made, it would be “judicial activism” to change it by way of a changed interpretation (a charge which, ironically, has generally been levelled at the Court by the same side of politics now bemoaning the Court taking a more black-letter approach).

      Incidentally, your thought exercise about a snap election betrays a lack of understanding about how modern political parties work. The major parties prepare candidates, at least for closely contested seats, a long way in advance (I believe this has already been done by the ALP and is at least close to complete in the Coalition) not out of reaction to particular events but just in order to be prepared in case there is a snap election for any reason.

      Again, the idea that these parties would avoid “ethnic” candidates out of fear of s44 is belied by the fact that the ALP has selected such candidates for years and simple relied on proper vetting, and even the Coalition has had no trouble selecting people born overseas (even if they will probably vet them more closely now). From Sam Dastyari to Matthias Cormann, the range is broad.

      Could this make it more difficult for independents to stand at such a snap election? Yes, but that’s s44 for you. That someone employed in the public service should have to resign to run, someone whose business has a Commonwealth contract should have to drop their business to run, is far more absurd than that someone thinking of running for public office should have to drop a dual citizenship to run. It absolutely should be changed, and not just for the citizenship point, but in the meantime it is what it is.

      • Hi Arky, I did (as I usually try to) set out all the relevant parts of the HCA judgment that I criticise, so that others can judge. Yes, there were some other parts I don’t address about context and history and the like, but I think it’s a fair reading that they were too uncertain to make a difference to the ruling either way – the HCA’s judgment really does turn (in my view) on its ‘certainty’ and ‘serious reflection’ assertions (and that’s all they are.)
        As for giving respect to a unanimous judgment, I’d be willing to do so if the Court’s members did the courtesy of writing their own individual judgments, rather than this terrible process of having one of them ghostwrite it for the rest. I think there are several judges on the Court who would not have written the particular paragraphs I cite if they had been writing them themselves under their own name (something I discussed at length in my Culleton post.) The three MPs who were unwillingly sacked from elected positions deserve a genuine explanation of each judge’s reasoning (some of which might be identical), rather than this weird pro forma judgment. There’ll be no respect from me for judgments like this.
        I had hoped that my own personal example would convince you why the ‘take a minute to think’ argument is a poor one. I’ve taken far more than a minute to think and can see no plausible way to know my citizenship. And I did put my argument (convincing or not) as to why there’d be no activism at all in reading in a knowledge requirement into s44. Yes, I have as much contempt for Libs calling for activism as I do for Greens and Labor calling for strict and complete legalism. They are nearly all unqualified to be MPs in my view.
        You may perhaps be right about the major parties’ usual process (though the Libs are now in doubt, given Parry), but my hypothetical is much more about less usual process and the prospect of other parties in the future. We aren’t (yet) the US where there’ll only ever be two parties – indeed, coalitions and cross-benchers seem to be on the rise.
        As for Parliament’s diversity, it is certainly lagging with the diversity of the population, which is increasingly drawn from a broader range of countries. That’s where the problems with the High Court’s inadequately defined ‘constitutional imperative’ test will cause trouble.
        And, finally, yes, my proposals, while admittedly hilarious, are also deadly serious. I can’t say the same of the hopes for constitutional change.

        • I don’t think Re Canavan is as bad as you think.

          ” Somewhere, there may be an old Soviet record, or a wartime refugee camp form, or a surviving acquaintance of my grandparents, or a genetic link to some ‘atomic globule’ in Central Asia, that could belatedly confirm me as a citizen of one of a potential dozen or so nations, each with their own highly complex and shifting citizenship laws. My own ignorance of these matters (no matter how diligent my personal search) would be absolutely irrelevant to my future eligibility,. So holds Re: Canavan.”

          The Court didn’t completely throw out the Sykes v Cleary exception for reasonable efforts to renounce foreign citizenship. In your example, you’d have made reasonable efforts to uncover any foreign citizenship and renounce it, and that should be enough (if the Court actually ruled against you in that scenario, THEN we could all get outraged together).

          Of the “citizenship 7”, only Roberts’ case actually raised the reasonable efforts question and the Court was clearly not interested in spending time on it just for him, taking the view he was a long way from wherever the line is. None of the citizenship 7 had the kind of hidden ancestral history you refer to, they just had not turned their mind to it at all. The Court wasn’t called on to decide it.

          All we can really say out of Re Canavan is that the Court chose not to imply any wider exception into s44 than Sykes v Cleary already set, and that someone who knows they were born overseas or that one or both parents were foreign citizens at least has an obligation to check into those obvious red flags before blithely declaring themselves eligible to stand for office, and to renounce through proper channels (if possible) if they do uncover something.

          • Actually, they narrowed Sykes: “Section 44(i) is not concerned with whether the candidate has been negligent in failing to comply with its requirements. Section 44(i) does not disqualify only those who have not made reasonable efforts to conform to its requirements. Section 44(i) is cast in peremptory terms. Where the personal circumstances of a would-be candidate give rise to disqualification under s 44(i), the reasonableness of steps taken by way of inquiry to ascertain whether those circumstances exist is immaterial to the operation of s 44(i).” My efforts don’t count. The only issue is whether a foreign country made things difficult for me – my personal circumstances don’t matter. And, as I argue, the reasonable steps exception won’t help a party considering nominating me.

        • Jeremy, would you not be in the same position as Senator Canavan, i.e. unable to be satisfied that you are a citizen of a foreign state and therefore given, in essence, the benefit of the doubt?

  3. Thank you for the above analysis Jeremy: I agree that the decision is problematic, and am particularly surprised, given the potential complexities, that the decision was unanimous.

    Other than the examples you have raised, the example of a foreign country passing a broad citizenship law (i.e. the Vatican passing a law that all Catholics are a citizen of the Papal State, or a tourist destination attempting to encourage tourism by passing a law that all persons who had stayed in the country for a certain period are citizens), which candidates would not be aware of and therefore be unable to take reasonable steps to renounce, is not addressed in Re: Canavan. That example seems to, at the very least, require a minimal knowledge element (such as that proposed by counsel for Ludlum and Waters).

    I have a third proposal to try to resolve at least some of these issues.

    The Australian Parliament could amend the Electoral Act to require that any person who wishes to nominate as a candidate for election must sign a declaration that:

    – they are not under any acknowledge of allegiance, obedience, or adherence to a foreign power;

    – they are not a subject or citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power;

    – they hereby renounce any citizenship of a foreign power that they may have, and any rights or privileges of citizenship of a foreign power that they may be entitled to; and

    – they agree not to act inconsistently with that renunciation, and not to exercise any rights or privileges of any citizenship that they may have.

    The Electoral Act could then provide that, for the purposes of Australian law, a candidate who has signed the relevant declaration is deemed not to have a foreign citizenship or to be entitled to the rights or privileges of a citizen of a foreign power, provided they act consistently with the renunciation and do not exercise any of the rights or privileges of citizenship of a foreign power.

    The Electoral Act could also provide that, if the candidate subsequently acts inconsistently with that renunciation, or exercises any right or privilege of citizenship of a foreign power, the deeming provision no longer applies, and the candidate is deemed to have held a citizenship of a foreign power and/or been entitled to the rights or privileges of a citizen of a foreign power from the time of the inconsistent act.

    The drafting would need to be finessed to include “subjects” as well as citizens, but the above conveys the point. It would allow prospective candidates to effect a general renunciation of all foreign citizenships that they may be unaware of. The requirement that they act consistently with that renunciation ensures that the renunciation is not merely symbolic, but requires them to act as if they had in fact renounced their citizenship.

    There is a risk that the High Court would say that the Constitution entrenches a notion of citizenship determined by foreign law (consistent with statements in Sue v Hill and Re: Canavan that the Court must apply foreign law in determining the classification under s 44(i)), and that the Parliament therefore cannot amend the notion of citizenship in the Constitution. However, there is also authority that the extent of the application of foreign law in Australia is a matter for Australian law (see, e.g., Brennan J in Sykes v Cleary), and this is consistent with the approach taken in private international law generally.

    If constitutional, this approach would be cheaper and simpler than the alternatives.

    • Unfortunately, I thibk that would be ineffective, for the reason you suggest. Nothing Australian law says can affect a person’s rights under foreign and (subject to the constitutional imperative) it’s foreign law that governs s44. That’s why I think it’s foreign law that needs to change (absent a referendum.)

      • Hmmm, I’m not sure about that Jeremy. Consider the following:
        (i) an Australian law is valid even if it conflicts with a rule of international law – eg, we can conscript an alien (Polites, 1945) or do deals with Indonesia that arguably ignore several treaties; Horta, 1994, etc);
        (ii) International law (even a resolution of the Security Council) can’t make a governmental action valid if it’s not otherwise authorised by Australian law (Brown v Lizars, 1905; Bradley, 1973);
        (iii) our laws can be in breach of international human rights treaties even if we have become a party to them, and if the UN Human Rights Committee points out a breach we usually treat them with disdain. (The response to Toonen was the exception)
        (iv) the government can’t even be sued for arranging for things to be done to people overseas that turn out to be unconstitutional under the law of the overseas country (S195, this year); and
        (v) even the flat terms of s 44 that say a person is disqualified if s/he _is_ a subject or citizen of a foreign power is subject to exceptions where the foreign power makes renunciation impossible or very difficult (Sykes v Cleary as amplified in Canavan et all).
        It seems quite likely (but not certain) that in light of the first 4 principles an Act extending the 5th would be valid. Indeed the general expression of deference to other nations’ laws in the s 44 cases seems almost exceptional. When put to the test, the Court generally allows the Parliament and government to treat international law and the laws of other nations with contempt! This would just be one more example.

        • To put it another way, the extent to which s 44(i) entrenches foreign law in the Constitution is already subject to the implied constitutional limitation that foreign law cannot unreasonably prevent an Australia citizen from participating in the system of representative government established by the Constitution. It is at least arguable that legislation which purported to establish a mechanism for effecting a renunciation of a foreign citizenship under Australian law could validly do so, consistent with that implied limitation.

          I think the High Court would be reluctant to uphold legislation which was merely declaratory (“You are not a citizen”). That would amount to the Parliament trying to change the Constitution by other means. But provided the renunciation has some effect (an undertaking not to act inconsistently or exercise the rights or privileges of the citizen), it can be construed as more than merely declaratory: it’s a statutory means for an Australian citizen to effect a renunciation, at Australian law, of a foreign citizenship.

  4. To add another layer of uncertainty (and anomaly), there are several foreign nations which currently have Members and Senators elected to represent their nationals abroad, Italy is one such nation.

    In the early 2000’s the Italian Parliament made electoral changes to elect such members. see

    There are upwards of 200,000 Italian born people in Australia and almost 1 million who identify with Italian heritage (according to census data).

    My point is, that these elected members, there are currently 2 (one lower house and one Senator for Oceania) actively campaign in Australia for election to the Italian parliament, and are both themselves dual citizens of Italy and Australia.

    How does this situation square with the narrow reading of s44 by our current High Court?

    To highlight the ‘farcical’ nature of it all, Ministers of the Crown in Australia swear allegiance to a Queen who is also not even a citizen of Australia.

    I say we are ‘overdue’ for another Constitutional Convention to update the document to reflect contemporary Australia and not ‘the dead hands’ (to use Deane J’s description) of the authors some 120 odd years ago.

    I for one will be working for the entrenchment of a Bill of Rights to our Constitution to remove ‘opinion’ of any kind that would seek to denigrate those enshrined ‘rights’ by the Parliament, Bureaucrats or crafty Judges.

    • Why on Earth does s44 need to square with Italian law permitting dual citizens?

      Actually, a scenario where a dual citizen could legally be elected to both the Australian Parliament and another country’s Parliament is probably the sort of scenario everyone would agree should be avoided.

      In this day and age dual citizenship is often seen as nothing more than a way to ease travel and migration to other countries (this is and was especially the case with people applying for dual citizenship with EU countries!), but imagine someone being a dual Australian-Italian citizen in the 1940s for why it isn’t something that can be completely laughed off. Constitutional provisions aren’t only there for the good times.

  5. Very interesting Jeremy. However, I’m not persuaded that the identified analogies with criminal law principles are appropriate. The High Court was not concerned with anyone’s liability for breaching a requirement of the law. Rather, its task was to determine and uphold the requirements of s 44(i) of the Constitution. Regardless of the question of liability, a breach of those requirements results in disqualification.

    • My criminal law analogy was really about the shallowness of the court’s stated concerns about ‘ordinary language’ and the ‘uncertainty’ of mental/voluntariness elements. The relevant question is whether s44 works better or worse as an absolute liability provision.

  6. Jeremy,

    Re Senator Canavan, close analysis of the materials before the Court, and the procedure adopted prior to the final hearing, will demonstrate that his status under Italian law was not “unknowable”, or even necessarily very complicated.

    The Commonwealth procured an expert report. At no time did the Commonwealth or Senator Canavan suggest that there was a need for a factual contradictor in his case.

    In light of the report, the Commonwealth proceeded on the basis that he was an Italian citizen. The expert report said precisely that.

    Unfortunately, the expert report also included some additional commentary about whether the Italian law as applied by Italian administrators and courts was in fact correct or even constitutional. Until the hearing, noone suggested that this commentary needed to be explored further. There was no factual contradictor to take the point.

    Senator Canavan exploited that commentary to cast doubt on what was otherwise a very clear conclusion in the report that Senator Canavan had Italian citizenship by operation of law.

    The fact was not unknowable. It was just inadequately addressed in the evidence because the evidence was procured by a party in Canavan’s camp and never even read by any person with an interest in contradicting Canavan (until the amicus was appointed – and even then only on legal issues – 2 weeks before the hearing).

    Inconsistencies in Malcolm Roberts’ affidavit were enough to prompt a hearing on the facts in his case. The inconsistencies in the Italian expert report should have prompted the same.

    At the very least, the Commonwealth should have said at the first directions hearing: “We are in the camp of Senator Canavan and others. We do not think the facts will be controversial. But because we are in their camp, we wish to appoint a contradictor in case there is an available argument that the facts are controversial.”

    • That does seem to be a fair reading of the process. It’s a pity the expert reports aren’t published, as that would make things easier to judge. It did strike me that the High Court was keen to find a way not to resolve the argument that the retrospective application of the citizenship law to Canavan via the constitutional decision was itself unconstitutional. Of course, the subjective approach urged by the Attorney-General would also have allowed that.

      • There was an easy way to avoid pronouncing on the constitutionality of Italian law: Plaintiff M68.

          • By which you must mean: and therefore requires a factual finding of the foreign law’s constitutionality, notwithstanding the long history of act of State and associated doctrines? I see the argument, but don’t see why one wouldn’t simply construe the provision as turning on the application of foreign law ascertained in accordance with the usual rules.

      • Also… the notion that the subjective approach would avoid difficult questions of foreign law was a great furphy. One can certainly imagine cases where the resolution of the subjective issue means that it is strictly unnecessary to decide any issue about the content of foreign law. But it would be a bold (and negligently advised) individual who put all their eggs in that basket if there was an arguable question of foreign law. In practice, the subjective approach would add, not subtract, an issue.

        • I agree that the subjective test makes (and ought to make) no difference to an individual at the time of nomination (and nor, alas, will the ill-defined ‘constitutional imperative’ exception.) But when the issue if before the Court of Disputed Returns, I disagree, as the Canavan case shows.

  7. So were these criminal law related issues discussed by counsel in their oral or written presentations in this case?

    • Nope. But I didn’t raise them as legal arguments, but to show how just weak the arguments are that the HCA relied upon to rebut the arguments that were put by the A-G, etc.

  8. Clearly, the Constitution would be best amended to clarify that

    An Australian citizen and candidate for parliament is those persons who have:
    (i) been born in Australia or;
    (ii) been naturalised according to law, and renounced any former allegiance and;
    (iii) has not sought or been granted foreign citizenship by a process of deliberate personal application, and;
    (iv) does not hold a passport or document that confirms foreign citizenship

    or something like that.

    I do not understand why we allow dual citizenship at all.

    An Irishman applied for citizenship and on attaining it recently returned to Ireland where, having left the country and resided in Australia (and retaining his Irish citizenship) couldn’t vote in their referendum but is now able to participate electronically in the postal survey and any elections electronically for years to come from the other side of the planet in his mother/fatherland!

    Meanwhile, I am a little perplexed that commentators like Laura Tingle are ruefully suggesting that having appointed black letter judges the government’s pigeons are coming home to roost?

    2013 marriage and beyond wouldn’t suggest any particular black letter tendencies are guaranteed!

  9. I’m not a qualified lawyer, but I study the Constitution “Quick and Garran” and like reading this blog to see whats happening in the legal world and learn from Jeremy’s insight and others who comment. I don’t see whats so hard about the interpretation of SECT 44? You are either a Resident domiciled in Australia with no allegiance to any other nation, “this would qualify you to sit undisputed in the parliament, not in breach of SECT 44(1)” or you are also aligned to a second country i.e. “your country of birth” of which could be rightly considered as your primary country of allegiance. Isn’t very Australian citizen a subject of the queen? Subjects of the Queen who are i.e. British subjects of another Commonwealth country are not protected by SECT 117 of the Cth Constitution if they are a resident in an Australian State. They must be a subject of the Queen in right of the Cth of Australia. The fact they might be a British subject is not enough. This result is stated without argument in Wynes, op.cit. 142, and Ken, op. cit. 73. Therfore regarding SECT 44(1) in order to comply with SECT 44, surely one must be a subject of the Queen in right of the Commonwealth of Australia as is the case with SECT 117? Could it be as simple as that?

  10. It’s an interesting but ultimately irrelevant comparison to criminal law. Because this was a constitutional law case decided on constitutional law principles. So what that it had some similarities to criminal law? What reason does the Court have to arbitrarily decide constitutional cases by different a different line of precedent?

    S 44 might walk like a duck, but it doesn’t quack like one.

    Plus I would suggest the Court throughout its history has, usually, been quite textualist/literalist/black letter. Reading in implications is the exception. This is certainly the case when compared to other courts (PNGSC, SC of India, SCOTUS…).

    Given the Court’s preference for a conservative approach, I would have been mightily offended if they departed for the sake of parliamentarians (especially ministers of the Crown). Indefinite detention is legal, Australia is somehow not in control of detention centres despite $bils of expenditure… If the Court was going to imply things into the Constitution to make it more sensible, Re Canavan was not the case to start.

    I like your blog and I agree with your general thrust that the Court should more readily (re)interpret the Constitution, given it’s far too rigid. But why be so upset about Re Canavan – it’s the one case where conservatism led to a good outcome.

    • I just don’t think sacking Fiona Nash from a 12 year political career as a Senator because her estranged father was born in Scotland is a good outcome. I’ve found people’s callousness about others’ careers to be pretty upsetting, to be honest.

      • Easily avoided if she (or her party) had done their due diligence.

        And it is a good outcome because it reminds the entire parliament they are subject to the law of the land.

        When poor uneducated people feel the heavy hand of the law, it’s their fault and they suffer the consequences, no matter how ridiculous or counter-productive. But when parliamentarians feel the heavy hand, it’s the Constitution’s fault for being poorly drafted or the HCA’s fault for bad interpretation? I think not.

        I don’t know why you have such sympathy. They are merely suffering the kinds of (seriously detrimental and life-altering) consequences their constituents suffer every day at the hands of the law.

        Plus they should count themselves lucky – they don’t have to repay their illegally drawn salary. No robo-debt debacle for them. No getting thrown in jail to pay off that debt because they can’t afford it (well done, WA).

        They got what they deserved.

        • This exactly sums up what I’m talking about. There’s no comparison to welfare. Fiona Nash wasn’t receiving welfare – she had a job, which she was elected to. Welfare recipients aren’t denied welfare, or made to pay back money, because their estranged dad was born in the wrong place. And no-one is thrown in jail to pay back debt (fines are a different matter, though they shouldn’t be.) ‘They got what they deserved’ is exactly the argument you should be opposing, not cheering on.

          • Nothing prevents Nash coming back at the next election, except internal politics.

            Absolutely nobody is entitled to a continuing career as an elected representative. It is inherently a job which could end at any time without any fault on the part of the individual. It is also inherently a job in which at least close to half the country will want you sacked from at any given time, this isn’t really callousness, it’s just politics.

            Malcolm Turnbull and Michael Keenan conflating opposition to mandatory sentencing with support for paedophiles, THAT is callousness. Both men deserve to lose their long political careers post-haste for that alone in my view. Not callous, just politics.

          • I’ve likewise no love for our politicians. But I think a situation where elected pollies can be booted from office by a court for arbitrary reasons is even worse than our party system and its products.

  11. Why isn’t there a comparison to welfare?

    They received an entitlement (salary) they were not entitled to. They don’t have to pay it back. Welfare recipients received an entitlement they were entitled to and (often) did have to pay it back.

    The cause in both cases? Poorly conceived law.

    I disagree that fines are a different matter. Especially given the fines causing the imprisonment were not set by a court – a criminal punishment is being handed out exclusively by the executive (of WA. NSW does this also), and we’re meant to sympathise that parliamentarians suffered consequences after due process of law?

    But I think my attitude boils down to hypocrisy. I am usually a defender of politicians – they have a crap and thankless job, that no sane person would really want. They deserve their high salaries and allowances etc.

    But they are law makers. Law is their thing. Nonetheless they oversee many bad laws that ruin lives and choose to do nothing about them. That bad law ruined their life is not a tragedy. They (mostly) weren’t even gracious – keeping their portfolios and insisting they knew better than the Court.

    If their careers had been cut short in one of any other number of ways they would deserve sympathy. But to whine about how unfair that nasty s 44/HCA is is pot calling the kettle black.

    I suppose I would adjust to ‘they were treated justly according to law’. What more are they entitled to?

    • I guess ‘they were treated justly according to law’ is a valid position, so long as you take it about everyone: refugees, welfare recipients, Lindy Chamberlain, the stolen generation – all of them ‘got what they ‘deserved” according to law. But you can’t decide that some people you don’t like only deserve justice according to law, but others you do like deserve more.

      My position is ‘No-one, whoever they are, deserves to lose a job because of where there father is born.’ Lots of welfare recipients don’t deserve their treatment either (though I imagine some do), but none of them has ever been punished for the birthplace of their father.

      • I think we mostly agree but from opposite ends of the same issue.

        We agree that ‘justice according to law’ is often no justice at all, including here.

        Therefore, according to you, they should have been treated differently with a more just outcome.

        I agree, except that, there are many other laws that are more unjust that should be fixed first. Because parliamentarians are at the apex of and are responsible for the broken system, any brokenness affecting them should be fixed last. Thus, no sympathy for the unjust outcome given they haven’t even started on fixing the broken system.

        Sort of like women and children offf a sinking ship first – everyone deserves to get off, but those most able to get off should help the least able first. If that ultimately means the most able don’t get off, so be it.

        On overseas born fathers: let’s not even get into how Australia treats New Zealanders. They wish all they did was lose their jobs, instead they’re detained and deported.

  12. A Politician with a duel citizenship is a security risk regardless, even more so than a resident who doesnt have duel citizenship and born and domiciled here in Australia their entire life. There is a higher risk that Duel citizens can be influenced by the foreign power, their intelligence agencies from their country of birth-origin, and corporate entities to make decisions and pass on information back to the foreign entity against the best interests, welfare and well being of the Australian people. There is a higher risk of this happening during the tenure of a duel citizen in the Parliament. There is ample evidence that our Parliament is already influenced by foreign powers and or lobby groups. Having duel citizens entrenched in our Parliament doesnt help this, and my view is they do deserve to lose a job they were not qualified to occupy. How would you feel if I had been working at Melbourne Uni for say 10 years lecturing as a Law Professor and then finding out that I was not qualified to be awarded the position in the first place due to not meeting some lawful criteria?

  13. Jeremy, you’ve stated that your position is ‘No-one, whoever they are, deserves to lose a job because of where there father is born.’

    Are you arguing that the High Court should have allowed Fiona Nash to remain a senator, despite her dual citizenship at the time she was chosen as a senator? Wouldn’t this be tantamount to changing the Constitution?

      • The High Court shouldn’t be picking interpretative options in order to adhere to an idea like ‘No-one, whoever they are, deserves to lose a job because of where there (sic) father is born.’

        In this case, the point of the citizenship part of s44 IS that people are ineligible for this particular job because of where their father is born, unless they have made a point of renouncing that foreign citizenship. You are asking the High Court to interpret the Constitution to frustrate the express purpose of a provision in order to reach the result you personally think is right because of your family background (a background I share on one side, incidentally, so I do understand where you’re coming from. I would have similar issue standing to be an MP should I ever go crazy and wish to do that).

        There’s another problem with your statement there too- the idea that Nash and co have “lost a job”. First, being elected to parliament is a privilege, not just a job. There’s no unfair dismissal here. Second, they were ineligible for the job in the first place and prevented someone eligible from having that job. I don’t feel at all sorry even for Ludlum and Waters let alone Nash, Joyce and Roberts.

        • I agree. But the interpretative option I favour also supports the split allegiance purpose (unless you by the uncertainty issue.) As for the the job being a privilege – no. Standing for election, and sitting in Parliament when elected, is a right (of the elected and their electors), not a privilege, and shouldn’t be slightly set aside based on unsupported clains that a voluntariness or knowledge requirement would be uncertain.

  14. Arky, I agree that it would be stretching the plain and pretty intractable meaning of the words “is a suibject or citizen” to allow the 5 disqualified ones to stay in Parliament – but please, let’s not have exaggerated nonsense about the “express purpose” of the words. Pretty clearly, the drafters wanted to rule out people who might have duAl (duel, to the semi-literate) *allegiances*. Equally clearly, many people who have acquired a citizenship by the accident of being born in Canada or having a father born in Scotland have absolutely no feeling of allegiance to those places. The drafters used words that achieved an effect that is much broader than their purpose. The excluded ones were all a bit careless but let’s not work ourselves up into moral outrage about the need to save us from their dual/duel/duelling allegiances!

    • Yes dual. How semi – literate of me “LOL”. I hate not having spell check on my phone. I wonder if these same affected MPs by accident, have claimed any benefits be it travel on a passport or anything else what so ever, from their mother or fathers place of birth during their life time?

  15. Ok Brett, you’re not semi-literate, just a bit careless. I wouldn’t have chipped you for it at all if it was* just the once but there were 5 “duels” in the one post! Just as the Disqualification 5 were careless. And Jeremy’s reply – “they all say no” – is exactly as I expected. If they had ever acquired Brit/NZ/Canadian passports they would have been very aware of their dual status. They weren’t – they were careless. No basis at all for aspersions upon their loyalty. You should apologise to them.

    *”were” for those who still care about the subjunctive mood!

    The remedy for all this of course involves not only modernisation of s 44 but of the Oath/Declaration of Allegiance as well. At present when our MPs are sworn in they swear to be faithful and bear true allegiance to a woman who resides in Britain and who is the monarch of several nations whose interests sometimes conflict with ours. About time we has something about honouring the constitution and laws and faithfully serving the people, doncha think?

    • Ha Ha, why would I apologies to them? After all there have been no real investigations conducted by i.e. Authorities that I’m aware of into where the genuine loyalties or allegiances lie for these disgraced MPs. It seems the court just took their word in that they have not benefited what so ever from the 2nd citizenship “the dual status” they were not allegedly aware of.
      I don’t think there needs to be a change to Sect 44. The Quick & Garran (QG) Annotated Constitution clearly explains the definitions of “Allegiance, Obedience, or Adherence”. It goes on to say that Allegiance is the lawful obedience which a subject is bound to render to his sovereign. There a three kinds being: natural, acquired, or local. Natural is ‘Born from his birth which every subject owes to his Sovereign”. The Sovereign is said to be his natural liege or lord (I wonder what God thinks about this?).
      Allegiance is acquired where one is naturalized, or made a denizen.
      According to the QG SS 193 “Aliens” In English law an alien may be variously defined as a person who owes an allegiance to a foreign state, who is born out of jurisdiction of the Queen, or who is not a British subject. The rule of the common law is that every person born out of the British Dominions is an alien, and every person born within is a British subject. Then there is the jus soli “ the territorial test” of nationality contrasted with jus sanguinis “the percentage test” of nationality.
      So is a duel citizen part alien and part British Subject? What about other politicians who might be tainted with the dual status hiding in the shadows? If they are not honest and have no integrity but to serve themselves, how will we know without an amnesty being offered for them to come out of the closet and an audit being conducted?
      What happens with other not yet found out duel citizen MPs in a time of war, if Australia was to be in either a Trade War and real conventional War where their allegiance might be divided and tested? How would they act, will they serve both sides, will they covertly pass off classified parliamentary or other information they can access to their 2nd country friends? This is what Sect 44 in its current form will minimise i.e divided allegiance which must have been the framers intent.
      The problem with politicians not honouring the supreme law of the land is that most have never read or attempted to understand the Annotated version of the Cth Constitution or the Constitution Act.
      They only know of the Constitution by name it seems, treat it like a historical document with no relevance and are careless by not understanding that their intended yes vote on a Bill or part of a Bill to be passed in the Parliament, might violate its laws, and not be within the authority conferred by the Constitution. Then some poor affected soul might need to test the Act or parts of it in the courts as to its validity, all because of clueless Constitutionally naïve MPs passing a null and void law into operation.
      The laws of the Constitution are not taught in public schools in much detail to my knowledge, and if I had my way, it would be. Residents should know their rights and their obligations under it, as it was founded on their will or that of their ancestors to unite and govern them.
      How are they supposed to uphold its laws and values in accordance with Covering Clause 5 if they don’t know its laws? Covering Clause 5 is yet another thing dual citizen MPs have breached i.e. SS 33. “And all Laws” “This Act, and all laws made by the Parliament of the Commonwealth under the Constitution, shall be binding on the courts, judges, and people of every State and of every part of the Commonwealth”. But these MP’s disregarded SECT 44, possibly also a breach of their Oath of Office?
      What about Exiled Senator Culleton? In England i.e in the House of Commons, convictions for misdemeanour offences punishable summarily does not disqualify for membership of the House of Commons. The House, however has jurisdiction to expel any member guilty of an infamous or disgraceful offence even though it does not amount to a felony followed by a conviction and sentence. His departure over a key is highly questionable, especially the way he was alienated and treated by the Parliament, their treatment of him was rotten to say the least . But his fight goes on, we might yet see him back in his seat?

  16. Yes Culleton was unfairly disqualified by a very literal application of the rules, just as the others were. And he should have known in advance that he was ineligible, just like the others – he had been convicted and was subject to sentence. Your defence of him and not the others simply reveals that you like his party and don’t like the others. The law isn’t supposed to work that way, Brett.

    • I thought Culleton was eligible on nomination day / when he signed the form? And then subsequently became ineligible when convicted in his absence?

      As against the C7 who were all ineligible to start with.

      So, if I remember the facts correctly, I would have more sympathy for Culleton as when he nominated he was eligible.

  17. Well, I’m hopeful Frydenberg doesn’t even get referred (whatever I think of his politics), but if he does we shall definitely see if the Court’s interpretation has gone strict liability to absurdum or not.

  18. And just to make things even more difficult for would-be candidates, Edelman J has ruled, fairly unsurprisingly, that you can’t get an advisory opinion as to whether you have taken reasonable steps to renounce before nominating. See Re Barrow at
    Applicant was trying to eat his cake and keep it by telling Brit authorities of intention to renounce but that he would withdraw the renunciation if not elected – probably too cunning by half anyway!

    • I was the litigant in Re Barrow [2017] HCA 47.

      In CGU Insurance Limited v Blakeley [2016] HCA 2 at, Nettle J commented at 102:

      “[T]he issue in this case is not theoretical but, even if it were, the court does not lack jurisdiction to make a declaration concerning a theoretical issue, in the sense of an issue that does not presently exist but which is likely to arise in future, where the issue is productive of a real and pressing dispute, is of real practical importance or is one in which the claimant has a real commercial interest. Thus, for example, it is now well established that, where a claimant intends to take action which would subject him or her to a “theoretical” possibility of being subjected to legal process, the risk of being so subjected to that process is sufficient to ground standing to claim a declaration that the basis of the process (in that case, the offence) is invalid106 and, co-ordinately, that in such cases there is a matter upon which the court has jurisdiction to adjudicate107. Similarly, where a claimant has a real commercial interest in establishing the claimant’s legal status or entitlement in relation to proposed commercial conduct and there is a real controversy with some contradictor as to the existence or extent of the claimant’s legal status or entitlement, the claimant may have standing to obtain, and the court co-ordinately will have jurisdiction to grant, a declaration as to the existence or extent of the status or entitlement108.”

      In my opinion, a candidate can receive a valid declaration from the Court that may be theoretical, in circumstances where:

      1. the candidate has strongly expressed a future intention to contest an election (it is ‘likely to arise’);

      2. the candidate has a real interest given the holding of dual citizenship will disqualify him or her from being elected;

      3. the Court’s declaration will produce a real and foreseeable consequence of providing a reasonable basis that he or she is not disqualified from participating in the election process [subject to petitioner challenge after the election in the usual way];

      4. there is a Matter as taking action to run as a Senate candidate (for instance) will subject that person to the possibility of a legal process of:

      (a) a petition under Division 1 of Part XXII of the Commonwealth Electoral Act 1918, challenging eligibility to be elected as a Senator;

      (b) a referral by the Senate under Division 2 of Part XXII of the Commonwealth Electoral Act 1918, with questions as to qualifications as a Senator; and/or

      (c) proceedings under the Common Informers (Parliamentary Disqualifications) Act 1975, which could impose penalties prior to and for each day sitting in the Senate if proven to be disqualified from being elected as a Senator.

      5. The Commonwealth of Australia is a proper contradictor, as can be seen through its position in Re Kary Gallagher and prior citizenship cases.

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