Section 44(i) Of Australian Constitution: Issues And Controversies

Background of Section 44(i)

Question:

Discuss about the Restriction Imposed on Dual Citizens.

According to section 44(i) of the constitution of Australia it can be stated that any person who holds a dual citizenship is not entitled to be become a member of the Australian parliament (Legislation.gov.au. 2018). This section had been introduced in the constitution to ensure that that those who are in charge of governing the country must have undivided loyalty to the country and must be free from any influence or allegiance to foreign power.  This section clearly states that any  person who acknowledges adherence , obedience to any foreign power, or is entitled to the rights and privileges  by virtue of being a citizen of a foreign country is barred from being chosen as an elected candidate to the house of representative.

However this section of the constitution had been incorporated in the nineteenth century and was done so to avoid any conflict of interest that may be influenced by loyalty or allegiance to any foreign nation. However, at the time there had been no concept of Australian citizenship. Citizens of Australia had been divided into British citizens and aliens (www.abc.net.au 2018). However it can be mentioned that this section of the Australian Constitution has been perceived to be archaic by many as the provision of dual citizenship had not been coined at the time when the constitution was drafted. This issue had been discussed in the remarkable case Sykes v Cleary by the High court of Australia. The High court in relation to this case had stated that the assessment of whether an individual is a citizen of a foreign nation has to be determined by the laws of the nations, the concerned person is a citizen of. The second important point as discussed by the High court in relation to this case was that no Australian would be disqualified and barred from taking part in the election and would not be denied the right to be represented in the either o the houses of the parliament if such concerned person takes reasonable steps to give the citizenship of the foreign nation.

In another landmark case Sue v Hill, the High court of Australia had expanded the effect of section 44(i) and adopted an interpretation of the words of foreign power to include the countries of commonwealth and the United Kingdom. However these cases have come up in recent times as there has been a significant increase in the number of people who hold a citizenship of foreign power than the time when the constitution of Australia had been framed.  It can be stated that the exclusion clause which restricts the  citizens who hold dual citizenships from taking part in the federal politics has been held to be problematic and controversial and has given rise to some issues as enumerated below:

• Whether persons who hold citizenship of more than one country should be barred from taking part in federal politics?
• Whether it is necessary for citizens to give up the citizenship of the other country to be elected in the House of Representatives? And if so what steps should be taken to denounce the membership of the other nation?

Interpretation by High Court of Australia

The interpretation of the aforementioned section By the High court of Australia in the case Sykes v Cleary has shed light on three important issues:

• The first issue that the court highlighted in relation to interpretation of section 44(i) was the meaning and acknowledgement of the terms allegiance, obedience to foreign power. It has also been highlighted by the court that there is a need to provide a distinction between a subject and citizen.
• The second issue that the court encountered while interpreting the aforementioned section was the identification of the extent of a different nation’s citizenship among the Australian citizens
• The third issue that has been identified by the court is what steps to be taken by a person to denounce the citizenship of a foreign power should be considered to be reasonable.

Thus after discussing the problems related to the interpretation of section 44(i) of the Australian constitution it can be said that the need to amend this provision has also been proposed by some of the members of the parliament.  In my belief this can be termed as a constitutional crisis as it has affected both the minor and the major parties (Power and Power, 2018). This section can be said to be incoherent with the policy of multiculturalism. It can be stated that most of the residents of Australia have been born in abroad nations or have parents who were born in abroad nations and thus this principle can be said to be inapplicable. It has also been proposed by many this section of the constitution needs to be amended by following the referendum process as mentioned in section 128 of the constitution. Although on paper this provision aims to ensure that the persons who are elected to run the country have undivided loyalty to Australia and are free from any allegiance to any foreign power, however it practicality it is implausible and inapplicable. The exclusion or restriction clause has adversely affected the smooth functioning of the parliament of Australia as most of the residents of the country have a multicultural lineage and a complex nature of Dual citizenship. This exclusion clause of the constitution can also be said to be inconsistent with the fundamental principle that a parliament of a country must be the representative of the people (www.economist.com 2018).

Thus due to its inapplicability the aforementioned section of the constitution can be amended by the following the procedure of referendum as enshrined in petition 128 of the constitution (Legislation.gov.au. 2018). . The task of amending the constitution can be a complicated process; however since in this case the need to amend this provision is clearly apparent and inevitable it should not be such a complicated task. However, a sensible proposal to amend the constitution has to be devised by the members, which should have the criteria to make the task comparatively easy by ensuring that all the essential requirements of eligibility are met by the members who are in favor of amending the constitution. In order to amend the constitution the parliament must approve such proposal. After being approved such proposal must be sent to the governor general so that a writ can be issued and a referendum can occur.   

Problems of Interpretation

It can be mentioned that this provision of restricting or prohibiting a person, having dual citizenship from becoming a member of the parliament is also present in many countries other than Australia. India Indonesia and China some of the most populated countries of the world do not have the provision of dual citizenship at all. This means that a citizen of India, China or Vietnam cannot hold the membership of another country. Countries such as Egypt, Israel and Sri Lanka do not allow the persons who hold dual citizenship to become members of the parliament of the respective countries (www.economist.com 2018).  The main principle behind this provision of restricting persons who have dual citizenships to take part in the politics of the country can be said to prevent loyalty and allegiance to foreign power. However, in the United States of America, any person who is not born on American soil cannot run for presidential election. During the election of Barrack Obama as the president of the United States, a lot of controversy had been raised. In Mexico not only immigrants have been barred from presidency, but also their children are barred from taking part in the election procedure.  Mexicans who hold passports of other nations are barred from serving in the Police force, flying a ship or being appointed as a ship’s captain.   In some other countries like Myanmar, a citizen who is married to a foreigner cannot be elected as a president. It is the reason why the daughter of Aung San, the independence hero, Aung San Suu Kyi had been barred from being elected as the president (www.economist.com 2018). She had to create the post of ‘State counselor” for the purpose of running the country.   

Thus in conclusion, it can be said that section 44(i) of the constitution of Australia prevents any person who holds the citizenship of another country to take part in the federal politics and be elected in the House of Representatives. This provision had been incorporated in the nineteenth century and was done so to avoid any conflict of interest that may be influenced by loyalty or allegiance to any foreign nation. However, this provision has also been discussed by the High Court in the case Sykes v Cleary and has been interpreted. The high court of Australia in relation to this provision has stated that it is important to assess the extent of another country’s citizenship on an Australian citizen. The high court has further stated that a person who is willing to take part in Federal politics and to be elected as a member of the parliament must take reasonable steps to renounce the citizenship of the other nation. However this provision has created a lot of controversy and has been perceived to be against the fundamental principle of multiculturalism of the nation. Australia is not the only country which prohibits individuals who have dual citizenships to take active part in politics. There are many other nations such as Egypt, Israel and Sri Lanka who follow Australia’s example.

References

ABC News. (2018). What is it about section 44 that keeps tripping up our politicians?. [online] Available at: https://www.abc.net.au/news/2017-11-17/constitution-section-44-what-it-says-about-disqualification/9161180 [Accessed 6 Apr. 2018].

Aph.gov.au. (2018). Section 44 of the Constitution – Parliament of Australia. [online] Available at: https://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/Publications_Archive/archive/Section44 [Accessed 6 Apr. 2018].

Legislation.gov.au. (2018). Commonwealth of Australia Constitution Act. [online] Available at: https://www.legislation.gov.au/Details/C2013Q00005/ [Accessed 6 Apr. 2018].

Power, J. and Power, J. (2018). An outdated citizenship rule is bringing down Australia’s parliament. [online] Quartz. Available at: https://qz.com/1130468/australia-dual-citizenship-scandal-an-obscure-citizenship-requirement-is-bringing-down-australias-parliament/ [Accessed 6 Apr. 2018].

 Sue v Hill - [1999] HCA 30 - 199 CLR 462; 73 ALJR 1016; 163 ALR ..

The Economist. (2018). People with two nationalities should be feted, not mistrusted. [online] Available at: https://www.economist.com/news/leaders/21726692-countries-bar-them-certain-jobs-should-think-again-people-two-nationalities-should [Accessed 6 Apr. 2018].