Sunday Essay - can we change Section 44 of the Australian Constitution?

While I have been preoccupied, Section 44(i) of the Australian Constitution has continued to claim more parliamentary victims. On 9 May 2018, the High Court ruled that Labor Senator Katy Gallagher had not been eligible to stand for election because she had not completed the renunciation process for her British citizenship before she was elected. As a consequence, three Labor MPs (Susan Lamb, Justine Keay and Josh Wilson) and one Centre Alliance MP Rebekha Sharkie who were in a similar position all resigned the Australian Parliament triggering a super Saturday round of by-elections.

I have lost contact with just how many actual or prospective Members of Parliament have been felled over the last twelve months as a consequence of Section 44 challenges..Is it 19 now?

In a piece in The Conversation,  constitutional laywer Professor Anne Twomey"s Dual citizenship debacle claims five more MPs – and sounds a stern warning for future parliamentarians looks at some of the issues arising from the High Court's black letter interpretation of Section 44(1). Another constitutional lawyer, Professor Jeremy Gans, looks at related aspects in another piece in Inside Story, Anne Aly and the insurmountable obstacle.The message is captured in the sub-heading: "The High Court has set a new citizenship test for parliamentarians of uncertain status, but who on earth could pass it?" Certainly it is far from clear to me on the evidence so far presented that Ms Aly would actually meet the High Court test.

Since the current controversy began, many extraneous issues have been dragged in. An example is this rather fatuous piece by Waleed Ally, Why are all our dual citizens white? which really has nothing to do with Section 44 but is an expression of Mr Aly's own perceptions of the world. Perhaps Scott Stephens, his co-host on the ABC Minefield program,  might subject Mr Aly's view to forensic analysis?

My own ideas on this whole issue have been set out in various posts. For the record, I have listed the posts below so that people can follow the story through to some degree. In this post I simply want to comment on a few issues.

Core Problem

In July last year in a post on the sudden resignation of Green Senators Senators Ludlum and Waters I wrote:

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).

I regarded this as a bad thing. I still do. Those who were affected by this first round were predominantly, not all, the children or grandchildren of those who came to Australia in the first big round of immigration after the war. Those who will be more affected in the future are the children and grandchildren of recent migrants, a very different wave. We talk about the need for diversity in the Federal Parliament, but we have a constitutional provision as now interpreted that will act as a barrier to some degree to just the diversity we seek.

This view is shared by many others. To quote former High Court Justice Michael Kirby's reported views

London: Former High Court justice Michael Kirby says the constitution should be changed to allow dual citizens to run for federal parliament because "dis-entitling" them undermines Australia's success as a multicultural nation. 

Mr Kirby said Australia's prohibition - which has seen 10 MPs disqualified since the 2016 election - was detrimental given Australia's rich immigrant culture. 

"Unless there is some other interpretive way to solve the problem then I think it should be changed because Australia really has been successful as a multicultural society and that is challenged by this approach to disentitle a very large number of members of the Australian community being elected to the national parliament. That's not a good thing," he said.

It's the law - get over it

Reading the comment streams on various articles, a common theme is "it's the law - get over it". This view suffers from certain weaknesses.

To begin with, it ignores the way that this matter has evolved. Other interpretations of the constitution were possible. It ignores, too, the way in which the High Court acts in these matters on referral from the Parliament, sitting as the Court of Disputed Returns. On the surface, the Parliament could have chosen not to refer. However, as more referrals were made further referrals became inevitable. Even then some referrals were not made even though they might have been, given that the High Court is the only body that can finally and formally rule on eligibility.

The common argument ignores, too, the costs and difficulties involved where eligibility to sit in the Australian Parliament is made dependent upon changing citizenship requirements in other countries that can only be interpreted in regard to the laws of those countries.

In the case of Green Senator Waters who was born in Canada to Australian parents who were studying there, had she been born just one week later she would not have been eligible for Canadian citizenship because of another change to Canadian law. Labor MP Sam Dastyari was born in Iran and came to Australia when he was four. It cost him a reported $25,000 in legal fees to try to clarify his citizenship position.

Countries appear and disappear. Regimes change. As these changes occur., citizenship laws change. People are citizens on day, may be not another,  may become citizens again later. Membership of the Australian Parliament is made dependent not on Australian law, but on the vagaries of other countries laws.and the interpretations place upon them.

Confusions over allegiance. 

It seems clear from comment streams that people are confused. Surely, they suggest, it is only reasonable that Australian parliamentarians should only possess Australian citizenship?  This one is more complicated.

The original provision in the constitution was introduced at a time of great power rivalry between the British empire and other imperial powers including the US and Germany. While the provision was never subject to serious discussion, the intent was imperial protection. The idea that the provision might be used to exclude people from New Zealand, the UK or Canada from the Federal Parliament, the idea of multiple citizenships or even citizenship itself, was outside the ken of those involved.

The world has changed since then, in fact many times. It's not all that long ago that Australia did not recognise dual citizenship.If I had got a British passport as was then possible, it would have created a difficulty for my Australian citizenship.

So there are some issues here that have to be thought through. But surely nobody would argue that just because Sam Dastyari was born in Iran, Larissa Water in Canada, that this would in any way affect their primary allegiance to this country?

Failures of political leadership

This whole mess reflects a failure in political leadership. When some time ago it was suggested that this was a problem that needed to be addressed, their was no willingness to do so. When the two Green Senators became involved, the Prime Minister was dismissive.

 "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."  .

Then when  the Liberal and National Parties got caught up, Opposition Leader Shorten was somewhat gleeful on the grounds that Labor's processes meant that that Party was protected. That hubris brought its own rewards as measured by the latest resignations. The hole thing would be quite funny if it were not so problematic.

Now that all parties have been so badly stung, is it too much to hope that we can actually have a conversation on what changes might be made to the Constitution?

Previous Posts

2 November, 2016 How far does Section 44 of the Australian constitution actually stretch?
Tuesday, July 18, 2017 Senators Ludlum, Waters and the emerging Section 44(i) mess
Monday, August 14, 2017 Why Barnaby Joyce may not be a dual citizen under Australian law
Monday, October 30, 2017, Section 44 of the Australian Constitution - clouded issues with a dash of moral bigotry
Friday, November 10, 2017, Chaos, confusion and the evolving Section 44 mess