Understanding The Restrictions On Foreign Citizenship For Members Of Parliament In The Australian Constitution

The Requirements of Section 44(i) in the Australian Constitution

Write a blog piece on the requirements in the Australian constitution that restrict members of parliament from holding foreign citizenship.

According to the section 44(i) of the constitution of Australia there are some list of requirements for every person who are to be voted as member of the parliament. According to section 44(i) of the constitution of Australia it is important for all the parliament members to trust and be loyal to the government of Australia. Any person who has dual citizenship of any other nation cannot hold the membership of the parliament of Australia. No member of the Australian parliament should be in any influence of the any other foreign government. We can say that this section of the Australian constitution is old as it was formed when there was no concept of dual citizenship. There is an excluded clause of the constitution that states that no person holding dual citizenship is allowed to get involved in federal politics as it was thought to be controversial and problematic (Leblang 2017). Two questions has been raised by the Australian constitution is that              

• Whether the principle of dual citizenship be removed from federal politics?
• Is it important to declare dual citizenship wrong as to get involved in federal politics and what are the necessary stages involved to denounce dual citizenship?

The subsection 44(i) of the Australia constitution has the motive to avoid the influence of the other states that can be both actual and perceived conflicts. The main objective of the constitution of Australia that every elected member of the parliament of Australia should have loyalty towards their own nation and must not be influenced by the other nation states. Till date it has been stated that none of the member of the parliament has been disqualified to stand in election or to be inside the parliament.

As mentioned in section 44(i) of the constitution of Australia, there are several issues that has arisen by the provisions. The issues that has been raised by the interpretation of the Australian constitution are as follows:

The initial issue that was raised is about the acknowledgement and meaning of allegiance, adhering to foreign power and loyalty. There are some requirements of providing the difference between the subject and the citizen that has also been highlighted in this issue.

• The extension of dual citizenship among the Australian citizens has also been identified as second issue.
• Third and the last issue that has been highlighted is the requirement of the reasonable steps that must be taken by an individual to give up the citizenship of other country.

According to the case Sykes v Clearly, Australia High Court held obiter dicta that Sykes v Cleary , Mr. Delacretaz and Mr. Kardamitsisand, the candidates of the Australian labor party and of liberal party has been disqualified to be chosen as the member of parliament under  subsection 44(I). But it has been stated that the judgment was focus on the disqualification of Mr. cleary but not on the disqualification of Mr. Kardamitsisand and Mr. Delacretaz.

Issues Raised by Section 44(i)

In the case of Sykes v Cleary there was two statements given by the high court of Australia which are subjected to the interpretation of the sub Section 44 subjected to the interpretation of the sub Section 44(I).

First statement given by the court stated that citizenship of any other country of any individual is to be judged by the law of the country and the related individual is the citizen of Australia.

The second statement that has been stated by the court is that any person holding citizenship of any other country should not be excluded from being elected in the parliament until the person takes step to give up the dual citizenship.

According to another case of Sue vs Hill 1999 the Australia High Court delete the effect and interpretation of the above mentioned section. In the above mentioned case the court meant the word foreign power to comprise to comprise the nation of UK and Commonwealth.

The Section 44(i) of the Constitution of Australia has continued to create havoc in the Australian political system. Creative problems for minor parties as well as for the major parties. It can be stated as the crisis of the constitution against the policy of multiculturalism of Australia.

A new question has been raised by the above mentioned discussion is that whether the Constitution be amended to stop giving importance to the section 44(I).

There is a clear requirement of amendment of this section that has been seen by the current events and incidents. The primary commitment of every individual is towards Australia that has been stated by the provision. According to modern law, many citizens of Australia holds dual citizenship which has created havoc in the functioning of the Parliament because of the history of multiculturalism of Australia (Alarian and Goodman 2017).

The above-mentioned section states that this principle can be inconsistent because the country should be governed by the representative of the people. This section has been said to be inappropriate because half of the Australian population is born in the other nation or their parents are born in abroad. The amendment if this principle is possible because it is inapplicable. As per the section 128 of the Constitution of Australia any law can be amended but there are some procedures to be followed.  In the above-mentioned case the requirement to amend this section of the Constitution is totally unavoidable and it must not be a problematic task. There should be a revised proposal to amend the Constitution and it should have the criteria in it that would assure the candidates who are in favor to amend this section of the Constitution to meet the eligibility to amend (Mazzolari 2017).

Cases Involving Section 44(i)

This principle of not allowing a person to be the member of the Parliament as they hold dual citizenship is not only applied in Australia as well as in other states like Israel, Egypt and Sri Lanka. But there are several other countries who hold dual citizenship like India Indonesia and China. This principle was created so that allegiance and loyalty must be there among the citizens. The United States of America follows the principle of natural born that can only run the presidential election. Because of this principle there was a lot of controversial parts for the former presidential election of Barrack Obama.  In Myanmar the married foreigners are prohibited from participating in the elections. That is why Aung Sao's daughter Aung San Suu Kyi who was a famous revolutionary was not elected to the president of the state. A post named “state counsellor” was invented by her to run the government of the country. The law of Mexico prohibits the migrants from organizing presidential campaigns and taking part in presidential elections but also prohibits their children as well to take part in presidential elections. There are other rules of Mexican law is that if any Mexican does not submit their passport of any other country are not permissible to take part in police force or fly an airplane or be a captain of the ship. These concepts have been brought out from their identity.  According to the case of Sam Dastari, an illustration has been given to this treacherous act that he was a member of the parliament of Australia who has been currently accused for holding dual citizenship as he was on the position of Senator and after that he made declarations to China that he has taken bribes from the companies of China who have links with the company of china (Harpaz and Mateos 2018).

In the concluding part it can be mentioned that the section 44(I) of the Constitution of Australia, forbids any individual to hold double citizenship of any other nation states to be the member of the Parliament of Australia as to assure that he or she is not in the influence of any kind of power of the other nation states. There were many arguments that was held and debated by the Australian high court in the famous cases like Sue v Hill and Sykes v Cleary.  This idea of dual citizenship did not even exist when this section has been formed in the Australian Constitution. As Australia has multicultural history, there were lot of problems held because of this provision to run the Parliament smoothly and efficiently. The section 128 lays the provisions of the procedure of amendment of the section of the Constitution of Australia as it was proposed to be amended. This section explains that any law of the constitution which is to be altered should be passed by the absolute majority in both the houses of the Commonwealth Parliament and if both the houses of the parliament passes the law then it goes to the submission procedure to referendum for at least two months after it has been passed by the parliament but it will be for less than six months This proposed plan to amend the section 44(i) will help the government of Australia and the constitution of Australia to function properly and effectively and no havoc will be created in future.

References

Alarian, H.M. and Goodman, S.W., 2017. Dual Citizenship Allowance and Migration Flow: An Origin Story. Comparative Political Studies, 50(1), pp.133-167.

Harpaz, Y. and Mateos, P., 2018. Strategic citizenship: negotiating membership in the age of dual nationality.

Leblang, D., 2017. Harnessing the diaspora: Dual citizenship, migrant return remittances. Comparative Political Studies, 50(1), pp.75-101.

Mazzolari, F., 2017. Determinants of naturalization: the role of dual citizenship laws.

Sue v Hill - [1999] HCA 30

Sykes v Cleary - [1992] HCA 60