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).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.
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?
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!
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.
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.