The recent resignations of Senators Ludlam and Waters mean that the following provision of Australia’s constitution is having a moment:
44 Any person who: (i) is under any acknowledgment of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power… shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.
Despite some comments to the contrary, the issue is not one of foreign ‘allegiance’ – no-one seriously thinks the two ex-Senators owed, much less acknowledged, an ‘allegiance, obedience or adherence’ to New Zealand and Canada. Rather, the issue is their foreign citizenship. Both Ludlam and Waters are foreign citizens by birth, despite moving to Australia as very young children and quickly obtaining Australian citizenship. Their resignations have prompted some debate about the appropriateness of s44(i). For instance, it is startling that both Senators could now readily become MPs in the parliaments of their respective birthplaces without relinquishing their Australian citizenship.
While the media discussion of s44(i) has centred around its text and the slim possibility of a referendum, Australia’s High Court has also played a key role in the lead up to this situation.Notably, in 1992’s Sykes v Cleary, after upholding a challenge to one elected independent MP based on another part of s. 44, the Court held that the Liberal and Labor candidates who had stood in that MP’s electorate were also ineligible because of their dual Australian-Swiss and Australian-Greek citizenships. The Court ruled that the existence of foreign citizenship under s. 44 depended on the terms of foreign citizenship laws (and not, for instance, the diplomacy law concept of ‘real and effective nationality’, which would have made the candidates’ long-term Australian residency determinative.) Crucially, the Court also carved out an exception to that rule (and, it seems, the literal words of s. 44) if the candidate ‘had taken reasonable steps to renounce that nationality’ before he or she nominated. This exception, intended to ensure that all dual citizens could ultimately make themselves eligible for election, has contributed to the (in my view, unfortunate) stance that s. 44(i) is an uncontroversial impediment to eligibility and that disqualified MPs have only themselves to blame for their predicament.
Despite the current refrain that the ex-Senators didn’t ‘follow the rules’ (and the High Court’s more recent goal of ‘certainty’ in s. 44’s operation), the effect of s. 44(i) remains quite uncertain. Describing the reasonable steps test it invented, the plurality in Sykes v Cleary wrote:
What amounts to the taking of reasonable steps to renounce foreign nationality must depend upon the circumstances of the particular case. What is reasonable will turn on the situation of the individual, the requirements of the foreign law and the extent of the connection between the individual and the foreign State of which he or she is alleged to be a subject or citizen. And it is relevant to bear in mind that a person who has participated in an Australian naturalization ceremony in which he or she has expressly renounced his or her foreign allegiance may well believe that, by becoming an Australian citizen, he or she has effectively renounced any foreign nationality.
The Labor and Liberal candidates held disqualified in Sykes v Cleary had each spent decades living and travelling on their birthplace passports before they immigrated to and became naturalised as Australians. The Ludlam and Waters cases could have been an excellent opportunity to test whether a ‘connection between the individual and the foreign State’ that consists only of birth and brief, infant residence, and the ex-Senators’ apparent beliefs (at least when they were naturalised) that they had no foreign citizenship at all, mean that no further steps to relinquish citizenship (even the mild ones required by NZ and Canada) are necessary. Alas, the ex-Senators (or, more likely, their party) have seemingly judged that the political costs of litigating that question now are too high.
Their stance also means that the High Court likely won’t be asked to change its interpretation of s44(i) to other plausible, but narrower readings. In Sykes v Cleary, Deane J and Gaurdon J both dissented, each arguing that the two candidates’ naturalisation as Australians decades ago made it unreasonable to now expect them to take even the minimal steps of seeking permission from a foreign state, or just acknowledging their potential foreign citizenship, in order to relinquish that foreign citizenship. Six years later, in Sue v Hill, a narrow minority of the High Court would have held that an MP could only be disqualified under s. 44 if the MP’s house of parliament referred that issue to the Court of Disputed Returns. That would have meant that the Senate could have opted to let Ludlum and Waters to stay in Parliament if a majority of Senators judged that their circumstances did not actually merit disqualification. As Kirby J explained:
Very many Australian citizens, whose allegiance to Australia could not be questioned, have dual citizenship with other countries. Estimates were given during the hearing, running perhaps into millions, of Australian citizens who would be affected. Their status for s 44(i) of the Constitution could not, in my opinion, depend upon (or be surrendered to) the laws of other countries which are many and varied. The defects of s 44(i) of the Constitution in a country whose citizens are drawn from so many other lands and nationalities has frequently been called to notice. The consideration of whether Mrs Hill was incapable of being chosen or of sitting as a Senator raises issues which may have considerable political significance upon which, in the first instance at least, it is completely appropriate to leave it to the Senate, rather than a court, to make a determination.
Had the dissents in either of these two cases been the majority, the two Senators would have had much better options than being forced to resign over avoidable, but trivial, errors.