Understanding Section 44(i) Of The Constitution Of Australia

The Australian Constitution and Legislative Branch

Question:

Discuss about the Archaic Traps of Dual Citizenship.

The Constitution of Australia is the main law through which the government of Commonwealth operates[1]. It consists of a number of documents and also includes the relationship with the Australian States. Chapter 1 of the Australian Constitution sets up the legislative branch of the government in nation, the Australian Parliament, where three parts constitute it[2]. Under this chapter, Part IV deals with both Houses of the Australian Parliament and covers the provisions regarding the voting eligibility and the election to parliament, the parliamentary rules, the parliamentary allowances and the related matters[3].

While sitting as the Court of Dispute Returns, the High Court of Australia was referred a number of issues, in the recent time, with regards to the elected parliamentarians’ eligibility which is covered under section 44(i) of the Constitution of Australia[4]. In the following parts, an attempt has been made to such matters which have been referred to the Australian High Court and the law which surrounds this section. Further, through this analysis, the need for reforming this section has also been analysed.

Section 44 of the Constitution of the nation covers the grounds on which a person who can possible be a candidate for election can be disqualified from the election to the Australian Parliament[5]. The same is raised for consideration by the High Court which sits in the capacity as the “Court of Disputed Returns”. Section 44(i) provides that any individual who is under the acknowledgement of adherence, allegiance or obedience to the foreign power, or is a citizen/ is entitled to rights/ is subject to/ is entitled to privileges of a citizen/ subject of a foreign power, would be deemed as incapable of sitting or be chosen as a member of the House of Representatives or a senator[6].

The High Court of Australia generally interprets section 44(i) to mean that the individuals with dual citizenship would not be allowed to stand for election, along with the requirement of undertaking the requisite steps for renouncing the citizenship of the other nation. The interpretation of this section is quite difficult. This is due to the preliminary awkwardness whereby the Australian Constitution does not require a Parliament member to be the citizen of the nation; even though section 42 of the Australian Constitution puts forward a requirement upon its members to swear an affirmation or an oath of allegiance to the monarch[7]. To complicate the matter again, a statutory condition for being eligible for election is the Australian citizenship. The Senate’s committee, back in 1981 had recommended that this section should be removed and a new provision should be inserted whereby the requirement of Australian citizenship is inserted as per the report of 1988 of Constitutional Commission[8]. The House of Representatives’ committee, back in 1997 predicted that there had been certain difficulties and there were three key changes to the Australian Constitution that were recommended and including in this was section 44(i)[9].   

Section 44(i) and Disqualifications from Parliament

There have been a number of instances where this section has been used. For instance, this was used in the case of Crittenden v Anderson[10]. In this case, an independent candidate, i.e., Henry William Crittenden had petitioned for the disqualification of Gordon Anderson on the basis of Catholicism. The ruling was given against Crittenden by Justice Fullagar and he stated that in case the premise set by him was sustained, it would result in any Catholic being prevented from holding a seat in the Parliament of Australia. The factor which led to the decision being made was the exclusion of Catholics from the Australian Parliament would be seen as an imposition of a “religious test” for the public office which would be deemed as a contradiction to section 116. It was also stated by Justice Fullagar that as a result of this petition, an analysis was invited with regards to the relationship amidst the state and church, over a long period of time. Dismissing the case, the High Court ordered Crittenden to pay the costs of Anderson. A similar ruling was earlier given in the matter of Sarina v O'Connor (1946) [11]. In this matter, the unsuccessful candidate Ronald Grafton Sarina, for West Sydney, after the federal elections of 1946 made a petition in the High Court for declaring the election of William O’Connor as being void pursuant to section 66(i) on the basis that O’Connor, as a Roman Catholic was under the allegiance of a foreign power. In Dec 1946, it was stated by the attorney of Sarina that they wanted to withdraw the petition and the same was granted[12].

Elaine Nile v Robert Wood[13] was again a case in which Robert Wood had been elected as the NSW Senator for 1987. Elaine Nile of the Call to Australia party challenged the election of Wood on the grounds that "His actions against the vessels of a friendly nation indicate allegiance, obedience or adherence to a foreign power". This was due to t eh fact that Wood had been imposed upon a fine to the value of $120 as he had paddled a kayak in front of USS Joseph Strauss which was a warship of US, at Sydney Harbor. The petition was dismissed by High Court in Dec 1987 on the basis of technical grounds. A number of observations were made with regards to section 44(i) in this case and this included a requirement of identifying the foreign power, along with acknowledging the allegiance[14].

Interpretation of Section 44(i) by the High Court of Australia

Later on, in Re Wood[15], it came to be known that Wood had not been a citizen of the nation when he was elected and it was determined unanimously that due to this, he was entitled to be nominated for the election as a senator and due to this, he had not been elected in a valid manner. This was due to the requirement of a candidate being Australian citizen as per the Commonwealth Electoral Act, 1918[16]. The question of dual citizenship was expressly declined by the High Court and was disqualified as a candidate from the election. 

In 2017 also, a number of cases have been raised for this section being possibly breached. The two leading examples in this regard are that of the Australian Greens Senators, i.e., Scott Ludlam and Larissa Waters, who resigned from the members of Parliament. Scott Ludlam resigned due to his failure in renouncing the dual citizenship as he was also a citizen of New Zealand[17]. Similarly, Larissa Waters failed in renouncing her Canadian Citizenship, where she was also a dual citizenship holder[18]. And some have referred the matter to the High Court of Australia, through the Court of Disputed Returns and this includes Senator Matthew Canavan[19] and Nick Xenophon[20].

There has been a lot of interest and excitement with regards to the Australian Constitution since the release of movie The Castle back in 1997. Earlier it was the two Greens senators, followed by One Nation and a Nationals Minster joining this malice. To add to the name of this list was Deputy Prime Minister Barnaby Joyce and the latest one was that of Joyce’s deputy, Fiona Nash[21], who faced conflict owing to section 44(i) as she held a dual citizenship of Australia and UK. As this apparently extraordinary drama surrounding citizenship reaches through the federal parliament, one needs to halt and take into consideration regarding the manner in which the High Court could act for figuring out who can be a politician and who cannot be one[22].

The grey area under section 44(i) is the term “entitled”[23]. The question which is raised due to this word is whether the individual has to be a citizen of the nation, or whether they have to would they just be entitled to claim the citizenship at a future time period. If the case of Joyce is considered, he had citizenship of both Australia and New Zealand. Now, till 1940s, both the nations were considered the subjects of UK. New Zealand law given an automatic citizenship to such child who is born in the nation and they do not have to register or activate the same. This is where an uncertainty is born for Joyce due to the question of whether acquiescence be amounted to citizenship. Also, if a person is entitled to foreign citizenship, would they be disqualified under the Australian Constitution? The case law are evidence enough that there is a need to act on this issue[24].

Historical and Recent Cases Referred to the High Court

This sounds stereotyping but the individuals who drafted the constitution of Australia were men who were deemed as the subjects of UK and even they would have faced difficulty in interpreting these sections, had these been required to be adopted at that time. It is true that the High Court of Australia can take a strict interpretation of this section and state that the eligibility to foreign citizenship would disqualify an individual; however, this would not be enough to halt the potential members of parliament from making the attempts for liberating themselves from a possible future claim on citizenship[25]. This again raises the question that whether renouncing the inherited citizenship is enough or is there a need to surrender the possible entitlement to such citizenship in the future. Hence, this would raise a question for the High Court to decide upon the exact vibe of the Constitution and what that means to be[26].

In essence, no one is entitled to be elected to the Australian Parliament as a result of section 44(i). Under the law of New Zealand, the citizens of Australia are not required to get a visa to work, live or study in New Zealand. Hence, every Australian person is entitled to privileges and rights of New Zealand subjects; though, these are not the citizen rights, for instance that of voting. New Zealand undisputedly is a foreign power. So, as every Australian citizen can be a citizen of New Zealand, everyone is disqualified from being a member of Australian Parliament, and not just Joyce[27].

All this points to one thing, section 44(i) wreaks a political havoc, which not only affects the minor parties, but also the major ones, which goes all the way up to Deputy PM. This constitutional crisis does not show any signs of abating and this begs the need of amending the Australian Constitution so that the modern multiculturalism is reflected under it. There have been several attempts in the past, along with several demands to either amend this section or to repeal it, but none of these have been adopted as yet. This has just led to the increased burden on the High Court of Australia to act as the Court of Disputed Returns. The problem is particularly because of the high number of cases which are being raised based on the dual citizenship problem, presented due to section 44(i). One cannot ignore that migrants have created this nation and these migrants usually hold dual citizenship. To deny them from being members and senators of Parliament is not fair as many of these citizens are not even aware of their foreign citizenship.

Reform: The Need to Amend Section 44(i)

Conclusion

To conclude the discussion carried on in the previous parts, it becomes very clear that section 44(i) does present controversies due to the wordings of this section. This section has the capacity of disqualifying every citizen of the nation as they are “entitled” to the citizenship of a foreign land. Even though the High Court plays a crucial role in upholding the justness and fair applicability of this section, the rising number of cases being presented before it, for it acting in the capacity of the Court of Disputed Returns has raised the need for either a modification of this section, or repealing section 44(i). When it has been clearly identified that this section continues to be in the centre of political storms, it becomes evidence of the need of bringing change to it, instead of continuing to put burden over the Australian High Court.

Groves M, Law and Government in Australia (Annandale, NSW: The Federation Press)

Lim B, Australia's Constitution after Whitlam (Cambridge University Press, 2017)  Crittenden v Anderson (1950) 51 ALJ 171

Elaine Nile v Robert Wood [1987] HCA 63

Re Wood [1988] HCA 22, (1988) 167 CLR 145

Sarina v O'Connor (1946)

Australian Constitution (Cth)

Commonwealth Electoral Act, 1918 (Cth)

ABC News, Who's who and what's what in Australia's constitutional citizenship mess (21 September 2017) <https://www.abc.net.au/news/2017-08-19/who-is-who-dual-citizenship-scandal/8819510>

Andrews K Surely it is now time to abolish the archaic traps of dual citizenship (03 August 2017) <https://www.theaustralian.com.au/opinion/surely-it-is-now-time-to-abolish-the-archaic-traps-of-dual-citizenship/news-story/8756a889e246a42909711d9a18216bad>

Angyal R, Section 44 Of The Constitution Means NOBODY Is Eligible To Be Elected To Parliament (16 August 2017) <https://www.huffingtonpost.com.au/robert-angyal/section-44-of-the-constitution-means-nobody-is-eligible-to-be-el_a_23078667/>

Belot H, Larissa Waters, deputy Greens leader, quits in latest citizenship bungle (16 August 2017) <https://www.abc.net.au/news/2017-07-18/larissa-waters-greens-resigns-senate-over-citizenship-bungle/8720066>

Belot H, Matt Canavan resigns from Malcolm Turnbull's ministry over Italian citizenship (25 July 2017) <https://www.abc.net.au/news/2017-07-25/matt-canavan-citizenship-crisis-resigns-from-cabinet/8742702>

Bennett B, Candidates, Members and the Constitution (28 May 2002) <https://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/rp0102/02RP18>

Davey M, Nick Xenophon will go to high court after finding out he's a British overseas citizen (19 August 2017) <https://www.theguardian.com/australia-news/2017/aug/19/nick-xenophon-will-go-to-high-court-after-finding-out-he-holds-dual-citizenship>

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