Senators Ludlum, Waters and the emerging Section 44(i) mess

The sudden resignation from the Australia Senate of first Scott Ludlum and then Larissa Waters has further opened a constitutional can of worms. The two were joint deputy leaders of the Australian Greens in the Federal Parliament, both were young seasoned performers with considerable promise. Their resignations came about because they were found to be dual citizens and thus precluded from membership of the Australian Parliament under Section 44(i) of the Australian Constitution.

Born in New Zealand in 1970, Senator Ludlum came to Australia with his family when he was three. He became a naturalised Australian citizen in his teens and assumed that his New Zealand citizenship had lapsed as a consequence. It was Perth barrister Dr John Cameron who investigated New Zealand official records who found that Mr Ludlum was also still officially classified in New Zealand as a New Zealand citizen.

Born in Canada in 1977 to Australian parents, Larissa Waters came to Australia as a baby. When she found out about Sentaor Ludlum's status, she checked her own position only to find out that she, too, was technically a dual citizen and hence not eligible to serve in the Senate. She resigned as a consequence.

Section 44(i) of the Australian Constitution reads:

44. Any person who -
(i.) Is under any acknowledgement 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 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.

The Constitution was passed as an Act of the British Parliament in 1900. This was a very different world, one of Empire and emerging Commonwealth. As you can see from the Wikipedia article on Australian nationality law, concepts of citizenship have evolved, as has the definition of a foreign power. In 1900, it would have been seen as inconceivable that Canada or New Zealand could or would be classified as foreign powers for the purpose of Section 44(i) as compared to, say, the United States or Germany. When Canberra founder King O'Malley, for example, wanted to run for Parliament, he appears to have changed his birthplace from the US to Canada so that he was not precluded by Section 44(i).

The problem now can be simply put: something like 28% of the Australian population was born overseas, while almost 50% of the Australian population has one parent born overseas. Perhaps as many as 4.5 million Australians are or may be eligible for dual citizenship depending on the laws in the other country and hence not be eligible to stand for the Australian Parliament on a strict interpretation of the wording of Section 44(i).
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Consider my own case as someone who has run for preselection for Federal Parliament. At the time I ran, I was eligible to apply for both British and New Zealand passports, to become a citizen of those countries. Indeed, my family later pushed me to apply for a British passport while I still could because of then EU access. Was I therefore ineligible to stand for Parliament?
    
One of the arguments in the current debate is that people should renounce their alternative citizenships and that they have only themselves to blame if they have not done so. There are a number of problems with this argument. You have to know exactly what your position is. Further, you have to be able to do so in some meaningful way given the laws of the other country. This actually makes membership of the Australian Parliament dependent on other countries' changing laws, something of an absurdity.

To take an extreme case, say the Irish Parliament changed its laws so that every person of Irish ancestry had an automatic right to apply for and be awarded Irish citizenship. On a strict reading of 44(i), that could immediately disqualify many of our current Parliamentarians. Perhaps a more relevant example is Israel's Law of Return that gives Jewish people an automatic right to Israeli citizenship. Are we therefore to exclude all Jews from the Australian Parliament?

A fair bit of point scoring from all sides has gone on around  the question of  Section 44 as they seek to use it for immediate political advantage. At a low level, this includes Mr Turnbull's comment on Senator Ludlum:

 "Obviously Senator Ludlam's oversight is a pretty remarkable one when you think about it - he's been in the Senate for so long," Mr Turnbull said. 

"Anyway, there it is, he's ineligible, and so there'll have to be, I assume, a countback ordered by the High Court to produce a replacement for him."  .

Maybe that's fair, but it ignores the way this issue has been developing and the implications it has for the operations of Parliament. Do we really want to place ourselves in the position that more than 25% of the Australian electorate may be excluded from running for Parliament?

In the end, it comes back to the High Court and the way it might interpret Section 44(i) in the light of current events. Perhaps Dr Cameron as a concerned citizen who has already brought down two Senators might consider doing a Bryan Pape and taking a citizen's case to the High Court. I, for one, would like to know just how that clause might be interpreted so that we know who is actually eligible to run.  

Postscript later on 18 July

Interesting piece by Amy Remeikis and Eryk Bagshawin the Brisbane Times: Greens senator Larissa Waters resignation triggers wave of MPs declaring Australian allegiance. Settled one issue to begin with. Tony Abbott renounced his British citizenship before entering Parliament. On Ms Waters:

Senator Waters, who was born to Australian parents studying in Winnipeg, said she had been assured as a teenager that she needed to "opt-in" for Canadian citizenship by her 21st birthday, an option she declined after not visiting the country since she was 11 months old. 

But her lawyers this week revealed that while Canada had changed its citizenship laws to the opt-in model in 1977, the year Senator Waters was born, it did not take effect until the week after her birth and she was automatically a citizen. 

An update too on ABC, including information that it cost Senator Sam Dastyari $25,000 giving up his Iranian citizenship cost $25,000 and involved two teams of lawyers — one from Australia and one in Iran.

It all remains a bit of a mess.

Postscript still later 18 July

I had not seen this High Court Decision that bears upon the application of Section 44. Recorded for later reference.

Update 26 July 2017

Section 44(i) of the Australian Constitution continues to create problems with the resignation (and here, here, here, here) from the ministry of National Party Senator Matt Canavan.

Senator Canavan was born in Australia and has never been to Italy. However, it appears that Senator Canavan's mother included him in her 2006 application to become an Italian citizen, making him a dual citizen without his knowledge. Senator Canavan has not resigned from the Senate at this point. Instead, the Government will test the matter in the High Court,.seeking to clarify the interpretation of Section 44(i).

For those who are interested, there is quite an interesting discussion on the Melbourne Law School High Court Blog that draws out some of the issues associated with Section 44.