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Dual citizens beware: Enter at your own risk

What follows is information sent to me by a Facebook friend Nick Chugg regarding section 44 of the Australian Constitution and the changes that have been proposed over the years.

The writing is attributed to Ian Holland of the Sydney Morning Herald. The full transcript is here.

Reading through it reveals that Section 44 has been a contentious issue for some time. It also clearly indicates that prospective MPs should have been aware that dual citizenship was something to take very seriously. I don’t see how any aspiring politician could plead ignorance.

Nationals senator Matt Canavan and One Nation senator Malcolm Roberts have changed their stories to reveal that in the first instance they were lying about their citizenship status.

With the futures of 7 MPs under a cloud pleading ignorance will be an important factor in the courts ruling so I hope what follows helps in that regard.

Hi John.

Regarding Section 44 Constitutional review.
Numerous motions have been passed, the latest back in 2003.

“Proposals to Change Section 44

Section 44 has been the topic of regular review and debate. In 1980, the Senate referred constitutional qualification and disqualification issues to its Standing Committee on Constitutional and Legal Affairs.

The Committee reported in 1981. Its report, The Constitutional Qualifications of Members of Parliament recommended that every one of the five subsections of section 44 be either amended or deleted.[4]

The Australian Democrats have on four separate occasions proposed bills to address the perceived limitations of section 44, but none has been fully debated. These Bills were:

Constitutional Alteration (Qualifications and Disqualifications of Members of the Parliament) 1985

Constitutional Alteration (Qualifications and Disqualifications of Members of the Parliament) 1989

Constitutional Alteration (Qualifications and Disqualifications of Members of the Parliament) 1992 and Constitutional Alteration (Electors Initiative, Fixed Term Parliaments and Qualification of Members) 2000.

The Constitutional Commission also considered the issue in the late 1980s. It recommended extensive reform of the qualification and disqualification provisions of the Constitution (see Chapter 4 of Volume One of the Final Report of the Constitutional Commission). Its recommendations were by and large similar to those of the 1981 Committee report, and to those suggested later by the House of Representatives Standing Committee and by Senator Bob Brown (see below).

1996 House of Representatives Standing Committee Report.

The House of Representatives Standing Committee on Legal and Constitutional Affairs conducted an Inquiry in 1996. The report was Aspects of Section 44 of the Australian Constitution: Subsections 44(i.) and (iv.). The key recommendations of that report were recommendation 2:

The Committee recommends that a referendum be held to make the following changes to the constitution:

delete subsection 44(i.)

insert a new provision requiring candidates and members of parliament to be Australian citizens.

Empower parliament to enact legislation determining the grounds for disqualification of members of parliament in relation to foreign allegiance.

and recommendation 3:

The Committee recommends that subsection 44 (iv.) be deleted and new provisions be inserted in the constitution.

One provision should require a person who holds a judicial office under the Crown in right of the Commonwealth or a state or a territory to resign from the office before he or she nominates for election to the federal parliament.

Under the second provision certain other public offices, specified by the parliament, would be automatically declared vacant if the occupant of any such office nominated for election to the Senate or the House of Representatives. Under the third provision certain other public offices, specified by the parliament, would be automatically declared vacant if the occupant of any such office were elected to the Senate or the House of Representatives (emphasis added).

The Australian Electoral Commission published a summary and analysis of the House of Representatives report, in its Electoral Backgrounder No. 2, Parliamentary Report on Section 44 of the Constitution.

The government response to the House of Representatives Committee report was tabled on 9 December 1997.The government accepted the major recommendations of the Committee in principle, stating that:

it accepts that constitutional and legislative action is the only realistic way in which to overcome these shortcomings [of section 44]. Given adequate support for a suitable proposal, the government would be disposed to put the constitutional issue to a referendum at an appropriate time.

On the other hand, it also indicated:

that a proposal should not be formulated without first considering whether it would be appropriate also to amend other parts of section 44, or any other relevant constitutional provision.
There has been no such formal consideration of this issue since the government made its response.

On 29 October 1996 , following the High Court ruling in Free v Kelly, Senator Bob Brown moved a motion calling on the Government to formulate a proposal for amendment of the Constitution to deal with section 44.[5] The motion was passed without a division.

Two years later, there having been no further action on the House of Representatives Committee Report, Senator Bob Brown introduced a Bill into the Senate, titled the Constitutional Alteration (Right to Stand for Parliament Qualification of Members and Candidates) Bill 1998. Its intention was to alter both subsections 44(i.) and 44(iv.) of the Constitution. Senator Brown s Bill highlighted one of the problems with reforming section 44.

Everyone agrees that the section is unsatisfactory. However, there are significant differences of opinion over how it should be changed. Senator Brown wanted to replace subsection 44(i.) with a requirement that a candidate be an Australian citizen.

During debate on the Bill on 3 December 1998, however, it was clear that others, such as National Party Senator Bill O Chee, believed that a candidate should hold only Australian citizenship.[6]

Proposals in the Current Parliament

After the 1998 election, Senator Brown put the Bill back on the notice paper, and it was debated again on 15 May 2003.[7] On this occasion the Bill secured the support of the ALP Opposition, the Australian Democrats, Australian Progressive Alliance and Greens, as well as independents Shane Murphy and Brian Harradine of Tasmania. However, a Bill proposing an amendment to the Constitution must pass each chamber by an absolute majority (see the Constitution, section 128). When Senator Brown s Bill was put to the vote, it secured the majority of votes in the chamber, but fell short of an absolute majority by three votes. Had another three of the ALP Senators present on the day but absent from the chamber for the division been there for the vote, it is likely that the Bill would have passed the Senate. However, unless there was a change in the government s view, it would have faced defeat in the House of Representatives.

On 30 October 2003, the Senate passed a motion moved by Australian Democrats Senator Andrew Bartlett, expressing the Senate s view that sections 44(i.) and 44(iv.) of the Constitution should be amended to remove the current prohibition on dual citizens and public sector employees being able to nominate for election to the Commonwealth Parliament. [8]”

 

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29 comments

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  1. thebustopher

    Duel citizens? With pistols at 30 paces?? Might be more dual citizens in this context 🙂

  2. John Lord

    Thanks thebustopher

  3. wam

    it is sad in this modern world that foreign citizens cannot be deemed equal and be able to rule Australia or foreign born, like kissinger(the illegal we can do immediately, the unconstitutional takes longer) cannot rule the septics.
    No it is not sad at all it is ridiculous:

    the cavanan sets the lowest standard for deception by confessing he was an italian citizen since he was 2 years old

    How hard is it to check your status when you were NOT born in Australia so the overseas born idiots come a close second.

    How easy is it to consider the decisions of a foreign country cannot over rule being born in Australia

    55% of eligible Americans turned out to vote in 2016 here we had 95% seems like we have the 3 years vast majority alright.

    Juliar got a multi times a day run and who wants a repeat? The rabbott, julie, dutton and trumball get good coverage with various pop up from labor, the loonies and various inane senators. What more do you want?

    My darling was part of a consensus government which was great. No parties just independents with a separately elected leader.

    ps Lord I loved your ‘duel’ a pertinent freudian slip.

  4. Harquebus

    If it wasn’t for section 44, we wouldn’t be getting ready to say bye bye Barnaby. The best laugh politics has given me since “I did not have sexual relations with that woman.”

    If ignorance is the problem then, why change it just to cater for the ignorant? If the politicians concerned weren’t so stupid, they wouldn’t be in this situation in the first place.

  5. Roswell

    Harquebus, I couldn’t agree more. ?

  6. John Lord

    Me too.

  7. Clean livin

    Harquebus. Definitely! But I can’t see the Constitution being changed. We don’t trust these bastards any which way. Why would we make it easier for them to screw us?

  8. Pilot

    No person with foreign citizenship should sit in Australian Parliament!! END OF STORY!!! 100% Aussie citizens only!! No debate, no court hearings, just throw them out on their ear, pay every cent back, no pension, no nothing. F*CK ’em. Get them out, deport them, just get rid of the lying mongrels! Screw them, they are parasites!! The “entitled”, ignorant, lying bastards need to go, the Constitution does not need an overhaul and anyone proposing that we have foreign nationals deciding our future needs to go and live somewhere else. If I had my way, only those born here with no links to foreign lands should sit in our parliament. Section 44 is in our Constitution for a reason, to keep lying scumbags from making decisions against our best interests. We have enough problems already, we don’t need any more.

    It really disgust me that virtually all parties over the years have attempted to water s44 down, that’s a disgrace. Just throw the bastards out, if they are good enough they’ll win their seats back LEGALLY. They are criminals ruling our country, and that is a disgrace!!!!

  9. Harquebus

    I am so stunned, I can not think an adequate response.

  10. pierre wilkinson

    never thought I would agree with Harquebus, but today I do…
    meanwhile, Baarnaby is hoist on his own petard: such delicious irony

  11. Michael Taylor

    Am I on the right site? Everybody – including me – agrees with Harquebus. ?

    I’m taking two Panadol and lying down for a few hours.

  12. wam

    haha preblunderbuss adequate is hardly your forte.

    Barnaby as a dual citizen it just duelling media hype that will keep us all amused for a few more weeks.

    Sad that, if pilot is genuine, some will work themselves into a lather over the stupidity of a pair of overseas born loonies and an Italian.

    I thought it was take a bex????

  13. Keitha Granville

    I cannot understand why the High Court is the arbiter of these cases. The 2 Greens Senators got it right by resigning, even though their transgression pales against those who are not only dual citizens, but have lied about it. That ought to rule them ineligible to start with.

    If the decision comes back as “it’s ok , mostly they just weren’t sure, we’ll give them the benefit of the doubt”I would hope we immediately see the reinstatement of Ludlam and Waters. If not, the entire parliament, and its government is a sham and a farce.

  14. helvityni

    Talk about falling into your own trap; Mal was berating the Greens for not knowing (checking) where their senators came from, now his own side has the most members who don’t know where they, or their parents were born…

    He’s busy trying to find out something iffy in Bill’s background….
    Earlier on people were shy to confess having convict ancestry, now it is almost desirable… 🙂 ( at least for our politicians)

  15. Harquebus

    M.T. as well. Now I am in shock.
    Where’d I go wrong?
    Now I gotta lay down. Must think about this.

  16. townsvilleblog

    In my humble opinion to sit in the nations parliament one should be 100% committed to Australia as an Australian citizen, dual citizens can do any other work except be a parliamentarian. If you have dual loyalties that’s OK as long as you don’t want to sit in the Australian parliament. Section 44 makes it abundantly clear that dual citizenship disqualifies one from becoming a parliamentarian in the Australian parliament.

  17. helvityni

    To be really fair, let’s make a law that rules that you have to be of an Aboriginal ancestry, if you want become a parliamentarian in the Australian parliament.

    Then again are we really fit to make such laws, we have to leave it the original Australians…

  18. stephengb2014

    Yes this from Harquebus – spot on the money
    August 26, 2017 at 9:02 am
    If it wasn’t for section 44, we wouldn’t be getting ready to say bye bye Barnaby. The best laugh politics has given me since “I did not have sexual relations with that woman.”

    If ignorance is the problem then, why change it just to cater for the ignorant? If the politicians concerned weren’t so stupid, they wouldn’t be in this situation in the first place.

  19. Roswell

    So there we are. We inadvertently found a way of disposing of Harquebus; AGREE WITH HIM.

    The man is in so much shock that he can’t stand up. Or sit down.

  20. John Kelly

    If it ever came to a referendum I would not support a change. Holding the citizenship of another country is anathema to the unique loyalty any member of parliament should be expected to profess.

  21. diannaart

    Indeed, Harquebus, bears repeating:

    If ignorance is the problem then, why change it just to cater for the ignorant? If the politicians concerned weren’t so stupid, they wouldn’t be in this situation in the first place.”

    From someone who has watched the human world cater to the ignorant, I am hoping for a greater slice of schadenfreude after the High Court’s decision – but won’t be holding my breath – will or would the High court seek the resignation of the Deputy PM?

    All very fraught and very exciting.

  22. mick loughlin

    Have the bookies laid odds? I would bet that Joyce is toast.

  23. lawrencewinder

    Is it just me but has anyone noticed that the Lying Nasty Papists Party seems a tad corrupt?

  24. Kyran

    It seems to me there are two issues here. The first being the Constitution. A document so rigid that the prospect of changing it is miniscule. Of the 19 referendums, comprising 44 questions, only 8 changes have been made. Whilst other significant changes have been made through acts, such as ‘The Statute of Westminster Adoption Act 1942’ or the ‘Australia Act 1986’, or through High Court decisions on interpretation, it is a document largely impervious to change.
    That we have so many politicians that are either ignorant of it or chose to ignore it is a separate issue. The document itself hasn’t changed and the prospect of changing it to cater for these fools is all but non-existent.
    What could be changed almost immediately is the manner in which the constitution is exercised. At the moment, if you stand as a candidate, you submit your details to the AEC. The AEC does not check or oversee much of the detail, as the candidate is presumed to be honest. Based on Mr Magrathea’s journey, there is a 40 day window from the return of the writs for a constituent to question the validity of their representative’s election. Failing that process, we are reliant on an elected representative effectively falling on their sword.
    How hard can it be to give the AEC sufficient authority to question every candidate’s nomination? To require a candidate to declare where they were born, where their parents and grandparents were born and to provide all requisite RN’s?
    There seems to be little argument to the premise that politicians can’t be trusted. Why do we allow a system reliant on the premise they are trustworthy?
    As to whether we, as individuals, do or don’t have a problem with dual citizenship and the implied allegiances created is completely and utterly irrelevant. Our Constitution does. Until it is changed, our opinions mean nought.
    There is nothing I would like more than seeing the Constitution scrapped and start again. The reality is that that is not going to happen. Certainly not in the current climate. We can, however, change the oversight of these self-indulgent reprobates.
    Until then, “Some cause happiness wherever they go; others whenever they go.”
    – Oscar Wilde
    Thank you Mr Lord and commenters. Take care

  25. Andrew J. Smith

    National party politicians and the LNP got what they deserve with their nativist policies and aggressive promotion of the same, while ignoring policy development and implementation; however Australians get the politicians they deserve and do no seem worried that out Parliamentary democracy is being nobbled by the LNP/IPA and NewsCorp creating a conservative Christian nativist nirvana.

  26. roma guerin

    Thanks for all the information on past attempts to fix S.44. Thanks also to Kyran for summing the situation up clearly. We must just hope the High Court follows the letter of the law even if it makes the present Parliament invalid. We will all grumble if we have to have another election, or even a slew of byelections, but them’s the breaks. The question of lifetime pensions will be for further down the track.

  27. Marion June Poke

    Oh Good Lord .. and you too John Lord.. Great article.. If these idiots had done their homework they would have no problems.. Since before people started asking if rabbott is still a dual citizen (not that Britain want him either) there were all these other reviews and Bills thru Parliament (Upper and lower houses) so everyone should have already cleared up their parentage details.. It’s our first Federal Law and they should know that it must be settled BEFORE THEY NOMINATE .. I agree with Kyran … great summation of the facts.
    But most shocking, tho I rarely comment, I also agree with Harquebus !!!! .. I think over the last several years this may be the second time..
    It will be a very quiet column with most laying down to recover with their chosen Bex, Panadol, 2 Aspirin or a drop of Gin… 🙂

  28. John Bradshaw

    No matter, all the legal words can be thrown around all any one likes, for me it seems the crucial parts of the Pollies problems right now are still there and they are all still in trouble and until changes are made I can’t even see why there is a High Court thing happening anyway, if they had any scruples then they should all simply retire from parliament. If the High Court lets itself give these pollies their positions back, then haven’t they broken the constitutional rule as well?

  29. jimhaz

    Dual Citizen ministers – Deport them.

    If they have broken the law, and to me they have, then as Dual citizens they should be sent to the other country – along with the 2 or 3 thousand other criminals already deported.

    You do not even have to be a criminal.

    “3. Acting inconsistently with your allegiance to Australia

    This one is the kicker. I’m about 60 per cent convinced it’s constitutionally invalid, but assume it stands up. It’s been designed to avoid the constitutional problem that the Government can’t declare you guilty of a crime. Instead, it says that, if a dual citizen or a foreign national “acts inconsistently with their allegiance to Australia” by engaging in certain conduct, they will renounce their Australian citizenship. ”

    They should at least be threatened with this. Bring it up now while Dutton is set himself up as God and can decide at his whim to send back people who have lived here for decades – then play with it once the ALP gains gov.

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