Monday, August 14, 2017

Why Barnaby Joyce may not be a dual citizen under Australian law

The tag on this tweet from @MrJoshEarl on Twitter reads "Oh Barnaby Joyce, if only there were signs."

The Joyce case has had some unexpected effects. Constitutional export Anne Twomey has told @ABCNews that in looking at the Barnaby Joyce case, she discovered that she was a New Zealand citizen.

I looked at the evolving problem on 18 July in Senators Ludlum, Waters and the emerging Section 44(i) mess. There I said in part:
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?
At the time I ran, the questions now swirling around S44 had yet to emerge. Nobody would have challenged my right to run just because I might have been able to apply for a UK or New Zealand passport. Track forward. Had I run and stayed in Parliament, then changing interpretations would likely have invalidated my membership.

Barnaby Joyce's father came to Australia in 1947 as a vet science student..My father came in 1938 as a university lecturer..In Australia, Barnaby's father met his Australian wife to be while studying, my father met his wife to be because she was in charge of the library at the New England University College. Both married and stayed. Barnaby was born in Australia in 1967. I was also born in Australia, if somewhat earlier.

On the surface, the advice from New Zealand Prime Minister Bill English that Barnaby Joyce was a New Zealand citizen for the purposes of New Zealand law citizen means that I am too. Mind you, in my case I do not necessarily object. I am very fond of New Zealand and quite like the idea of being citizen of both countries. I also thought that If I am a New Zealand citizen, then my daughters may be able to acquire citizenship too. That might create problems if they were to run for the Australian Parliament, but (as eldest said) they could always renounce an New Zealand rights should they wish to do that.

Interest aroused, I did a bit of checking to try to determine what my rights were. This proved more complicated than I expected because of changes in New Zealand law over time. As best I can work out, the position is this:
  • I am entitled to New Zealand citizenship and a passport by right of descent. 
  • To obtain registration as a citizen, I must fill out a form and provide supporting documentation to prove that I am eligible for registration. Once that eligibility is proved, then registration is automatic
  • If I register as an NZ citizen, it does not give my daughters automatic rights as an NZ citizen. They have to go through other hoops, including five years' residency.Damn!
In these cases, it is always important to look at the facts, especially when dealing with hyper-ventilating Canberra. I do not pretend to be either a lawyer or an expert on New Zealand law. My Joyce appears clearly entitled to register as a New Zealand citizen and obtain a New Zealand passport, but does that make him a New Zealand citizen as Mr English claims?  I would have thought not, at least so far as Australian law is concerned. To be a registered New Zealand citizen, he must both apply and prove that he is entitled to be so classified. He has not done that. Until he does so, his New Zealand citizenship is purely notional.

If the High Court were to accept this position, they would still have to deal with the entitlement part of clause 44(i).

Its all become a bit of a nonsense. For my part, I plan to follow up with both the UK and New Zealand authorities to determine what my position is. It's interesting. I haven't looked at the demography, but at a rough guess at least 500,000 Australians may be eligible to apply for New Zealand passports.Perhaps we should.

Postscript

Graeme Orr had a useful piece on The Conversation on the whole Section 44 matter, To the High Court we go: six MPs under clouds in decisions that could undermine the government.


25 comments:

Anonymous said...

They start producing a decent red wine and I'm with you, eh bro? And to all the afficiandos, I said "decent". Maybe think of it in terms of rugby players to get my drift :)

kvd

Anonymous said...

Bit of reverse logic: if Barnaby stands again, why not invite John Keys to run against him? Could do a lot worse imo. Better yet, just parachute him straight into Deputy PM, pending Malcolm's demise :)

kvd

Jim Belshaw said...

Snorts. You leave Barnaby alone! And NZ does have some okay reds, although the first time I tasted one it was truly dreadful. Let's make all All Blacks Australian citizens, the current wallabies New Zealand citizens. We could then take action to stop the AB's playing for NZ, while recruiting a new Oz team, perhaps based in Perth.

Anonymous said...

High Court aside I think all of us could have lost the plot in the face of some muck raking. For myself, I was born in Calcutta to two Australian parents. Have a bit of paper that my parents troubled themselves to get saying that I am "an Australian National born abroad". Additionally my maternal grandmother was English and I could work at any time in the UK because of that. Don't know whether all that means that I qualify to be a citizen in either country and much less so what it would mean for my children if they wished to run for parliament. We are a nation of newcomers, largely. Funny rugby comment Jim. Doubt those in Perth would see the humour though.
GL

marcellous said...

Jim

I don't think there is a doubt that Joyce was a NZ citizen according to Australian law. Under Australian law to determine citizenship of another country we look at the "municipal" law of the other country, subject to any objection to that as constituting an unreasonable over-reach. I do not think there is any suggestion of any such over-reach in Joyce's case.

The question is not whether he was also a NZ citizen but whether, not knowing of it, he is nevertheless caught by s 44(i) of the constitution.

The present High Court law on this is all in the High Court judgments in the Phil Cleary case when they discuss the position of the 2nd and 3rd placegetters in that election. That's where the "reasonable steps" test came in - ie, for the purpose of s 44(i), even though, according to the law of the foreign power you were a citizen of that power, you are not if you have taken reasonable steps to divest yourself of it. This would cover cases where it is impossible to renounce allegiance of the foreign power according to its laws.

In the Cleary case, the majority of the High Court was of the view that neither of the men in question had taken "reasonable steps." In fact there is no case where the High Court has found that reasonable steps have been taken - but that is in part because no one has challenged people who have taken steps in accordance with what the High Court said in Cleary were the reasonable steps that the 2nd and 3rd placegetters (born in Greece and Switzerland)had open to them and failed to take.

The only distinction between Joyce and these people is that these people must actually have known that they once were citizens of their birth country (though they possibly believed they had given that citizenship up), whereas Joyce knew the facts which should or at least could have put him on enquiry about the issue. That will be the difficulty for him - because he could have made some further inquiries and then taken the steps which he has now taken. Can he say he took reasonable steps? The Cleary case doesn't seem to contemplate ignorance of the need for steps or the existence of available steps as excusing the failure to take objectively available reasonable steps.

Roberts is probably in the same boat; Cavanan's position is more complicated in my opinion.

S 44(i)has long been recommended for replacement with a simple requirement of Australian citizenship. But it is one of those silly rules (and it could go much further if the question of entitlement to benefits of citizenship of a foreign power were stretched out further to their logical conclusion) which never gets properly determined and for which the political will for a constitutional amendment has not been mustered because for political parties there is a practical workaround - which is to require candidates to investigate their status and to sacrifice by renouncing their ties to other countries.

marcellous said...

And wait, more!

Incidentally, I don't think Malcolm's argument in Parliament yesterday that s 44(i)won't catch Joyce because its purpose is to guard against disloyalty, and there is no risk to a parliamentarian's loyalty if the parliamentarian does not know of their other citizenship or allegiance can really wash. Even if a parliamentarian doesn't know about it at present, the risk which appears to justify s 44(i) remains if objectively a politician has or is even entitled to another citizenship because they could find out or, even better, be subject to pressure or blackmail from a foreign power on being informed of it. It can't be eliminated by the politician saying "Oh, but I would never give in to such temptation/pressure, you know that." The whole rationale of the provision is to guard us against having to trust people saying things like that. Otherwise we could (as I think we should) just have a citizenship requirement for election and leave it up to the voters to decide if they will elect someone with an actual or potential foreign allegiance (after all, lots of us are in the same boat), or, if they are elected, to others in parliament how they will deal with such a people.

As to the current political games, I think it is possible the coalition started it off by going after Ludlum, Turnbull has walked into it by taking an incautious hard line, and the ALP, confident they have been more efficient in the workaround and are disinclined to give any quarter - which must have something to do with their experience of Tony Abbott's behaviour in opposition.

Jim Belshaw said...

On Perth and the rugby, GL, I'm sure that you are right. What a mess!

I'm inclined to agree with you about losing the plot. It may be as well that you had that piece of paper!

Jim Belshaw said...

That's interesting, marcellous, but I do think that I disagree with my learned friend.

I put it this way on the Melbourne law blog Opinions on High.

"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."

Graeme Orr made a similar point on the Conversation: "It’s possible Joyce will also argue the details of NZ law. For example, whether it automatically bestowed citizenship on him, or whether he was merely guaranteed it if he applied to activate it."

I will leave your other points aside for the moment because I want to further test this one.

marcellous said...

Jim

I don't know what you looked at, but if you relied on secondary information sites I'd say these are notoriously unreliable, especially in relation to historical situations.

I would have thought section 13 especially 13(3) of the present NZ act is pretty unequivocal.

http://www.legislation.govt.nz/act/public/1977/0061/latest/whole.html#DLM443882


13(4) does not apply to BJ as his father was a NZ citizen by birth, not by descent only.

Jim Belshaw said...

Hi marcellous. I did look at the legislation including the 1948 act but did struggle a little especially in my case. I was born in 45. I also looked at the forms and explanatory material.

The conclusion I reached was this. The New Zealand legislation asserts that Barnaby is a citizen (13.3)but that assertion does not come into effect unless he is registered. And to be registered, he has to both actively register and provide the required evidence. Until that happens, he has just an entitlement. From the viewpoint of Australian law, the High Court could rule that he was not a New Zealand citizen for the purposes of 44(i) since he had not applied for registration nor supplied the required evidence. In that case, the entitlement provision would come into play and need to be tested.

marcellous said...

"but that assertion does not come into effect unless he is registered"

Where do you get this from?

As for you, if your father was born in NZ as I assume to be the case and a British Subject (ditto), then you are covered by s 16 of the 1948 Act.

Jim Belshaw said...

I'm really struggling with two related questions, marcellous, that keep niggling at my mind.

The first is how barnaby (and it may apply to others in different circumstances) can be classified as a dual citizen when the NZ legislation says that he is a citizen by descent but in order to exercise that he has to prove, register and pay. That is what my my comment about assertion referred to. Barnaby has a notional position, but he (or me) has to take specific action to crystallize that. I've already noted that leaves the entitlement problem.

The second is that I do not fully understand why we are bound by the law of another country in determining whether, from the viewpoint of Australian law, that person is a citizen of that country. I would have thought, to take an extreme case, that if another country passed legislation asserting that categories of Australian citizens were citizens of that country whether they liked it or not and that law created Australian problems then Australia would deny the validity of that law so far as this country was concerned.

I guess that the High Court will sort some of this out. We are in agreement, I think, on the desirability of changing S44(1) and on the political games being played.

Jim Belshaw said...

Now we have deputy national party leader Australian born fiona nash via her Scottish father

Jim Belshaw said...

marcellous, the argument seems to be coming down to some of the things I have been arguing. The Nash case http://www.abc.net.au/news/2017-08-17/fiona-nash-says-she-is-a-british-citizen-will-not-stand-aside/8817998 "My understanding since early childhood was that in order to be a dual British citizen I would need to apply for it."

Mathew Doran's view. No idea as to his background - http://www.abc.net.au/news/2017-07-28/citizenship-grey-area-in-constitution-tripping-up-mps-senators/8754586

Jim Belshaw said...

And now we have another possible one if with a different clause in S44

marcellous said...

Jim

Sorry to harp on. It is always possible to talk up uncertainties but the uncertainties are of different orders.

(1) Whether someone is a citizen of a foreign power

This is generally pretty clear on the present High Court authority - that is, it is the least grey area. If the foreign state says you are, you are - subject to translation into our system of its legal concepts. If there is an argument about the facts or the translation that can be decided. The only real area for legal uncertainty is if the foreign state's claim is one which can be rejected as not being according to established norms. For example, a NZ law that all residents of Daceyville are NZ citizens would probably be such a law. Although this possibility is much raised in popular discussion about s 44 of the constitution, it doesn't arise as far as I can see in any of the cases so far because none of the foreign citizenship laws (certainly not those which applied to Joyce or Nash or, for that matter, you) are of that order.

What I don't think comes under this category is what you are saying about NZ law as it applies to you or Joyce. Joyce has admitted that he was a NZ citizen. The fact that he might have to do something to establish that to exercise the right is, I expect, trivial. You have to do something to establish you are an Australian citizen too before, eg, you can get a passport, but you are still a passport. Same goes for Nash I expect.

(2) "Entitled"

This is the big grey area because how long is the piece of string? What about where you can never conclusively renounce your entitlement?

(3) "Reasonable steps to renounce"

This is the other grey area. In Cleary the test was objective although you could argue it wasn't really decided then. This is really what Joyce and Nash and Canavan are hanging their hats on (unless Canavan can invalidate what his mother did under Italian law) on the basis that it is reasonable to have done nothing if you didn't know. That would require a bit of reinterpretation or manoeuvring round what was said by the High Court in Cleary, though they can do that if it they can find a good reason to do so.

What I don't think the H Court can do is to say (as Turnbull tried to say in Parlt) that the whole question arises if you know you have a divided loyalty, because if you think divided loyalty is a problem (which is the assumption of section 44) the risk of parliamentarians having a divided loyalty includes the risk of their possibly acting on it or being subject to pressure because of it or even because of exposure of it.

Jim Belshaw said...

Hi marcellous. Sorry for the delay. You are welcome to harp on! I'm just not sure how things will pan out. As we have seen with the Xenephon case, a nominal citizenship creates a problem. I ran for preselection in 72 when S44 was not an issue in regard to either foreign power (NZ was not seen as a foreign power) or any nominal citizenship entitlement. Had I been successful in entering Parliament, today I would apparently be ineligible if I were still a member. So changing interpretations would have altered my status.

I still don't accept your first point about Barnaby or Nick being a citizen of another power. It's right until they exercise it. But they are still caught by the entitlement one. This whole mess has evolved because no-one really addressed what Section 44(i) meant in real terms taking changing circumstances into account. In my very first post in this series when we had only two I said that I hoped some would take a case to the High Court. Well, now its happened in spades. If Joyce and Nash are ineligible then so is Xenophon.

The matter will have to evolve. According to some ALP commentary, the ALP has had teams of lawyers vetting candidates. I think that the High Court may well rule against Joyce. In that event, there will be a by-election. The campaign for this has actually begun. For the Senators, the procedure to be followed appears quite complicated. Lord knows how that will work out.

Anonymous said...

I don't pretend to understand the ramifications (much less am I interested in same) but it has been reported that BJ's dual citizenship has been conceded in submissions to the HC.

Speaking from a personal viewpoint, I can only say I'm very pleased :)

kvd

Jim Belshaw said...

What have you got against BJ, kvd?! I was a bit surprised at the concession. Interesting that Tony has sought approval to join the case. I imagine his argument will be that if BJ was not eligible to stand, then he as the second ranked candidate should be awarded the seat.

Anonymous said...

Nothing (much) against BJ Jim. Simply pleased that I may be able to take up NZ citizenship should the whim occur :)

kvd

Jim Belshaw said...

Ditto on that although its a qualified citizenship in that my daughters can't benefit. Still, more rights than Nick Xenophon under UK law. I really do like the idea that I am now a dual citizen with NZ :!)

marcellous said...

Jim

fyi, update from HC Transcript on Cavanan's position, edited for length:



MR BENNETT: We raise three issues. The first issue arises out of the question whether, for the purposes of section 44, my client is an Italian citizen. Your Honour, he was born in Southport, his mother was born in Ayr and his father was born in Toowoomba. So both he and his parents were born in Queensland. His father has no Italian heritage.


Now, his maternal grandparents were born in Italy, migrated to Australia and both became naturalised Australian citizens. Prior to 1983, Italian citizenship under the jus sanguinis, or citizenship by descent, passed through the male line only but for an unlimited number of generations, so that when Senator Canavan was born in 1980, as his father had no Italian heritage, he was not, under Italian law, an Italian citizen.


When he was two years old, in 1983, a case was heard in the Italian Constitutional Court which challenged the legislation as being discriminatory and unconstitutional. The court upheld the challenge and as a result the legislation was amended so that citizenship now passed through the male or female lines, again for an unlimited number of generations, and that law was made retrospective to persons born after 1948; your Honour will recall that Senator Canavan was born in 1980.


There is a doubt under Italian constitutional law as to the validity of that retrospectivity. This Court will not, of course, decide a question of the validity of Italian law under the Italian constitution...
We have expert opinion to the effect that it is invalid. What say that the fact that the provision is of doubtful constitutionality is a relevant factor in determining for the purposes of section 44 whether one applies Italian law. ...In Sykes v Cleary there is a reference in the judgment of Justice Brennan to a country conferring citizenship involuntarily on foreign citizens who have only a slender connection with that country - our primary submission is that that is exactly this case.

and it is, a fortiori, where the foreign law is of dubious validity.

The second issue concerns the registration document submitted by Senator Canavan’s mother in 2005.

HER HONOUR: Your issue is going to be that it is irrelevant.


The third issue, your Honour, is that foreign citizenship by descent should be ignored for the purposes of section 44. We will be putting evidence of the citizenship laws of a number of countries from which there has been substantial migration to Australia – countries like Ireland, Greece, Lebanon, Vietnam and so on. [and] from the Bureau of Statistics of the statistical breakdown of the Australian population by reference to those particular citizenship laws.

if one applies section 44 to citizenship by descent a very high proportion of the Australian population, possibly of the order of 50 per cent, would be disqualified from being senators or Members of Parliament. We will then submit that that result is so ridiculous that section 44 should be construed so as to exclude citizenship by descent alone

Jim Belshaw said...

How very very interesting, marcellous. My thanks.

marcellous said...

Jim

You were very stubborn on bJ. I'm going to say "I told you so."

Jim Belshaw said...

Laughs. You would be entitled too.