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Dual citizen politicians: what to do?

It is evident that section 44 of the Australian Constitution causes considerable angst to elected representatives in the Commonwealth Parliament. Section 44 sets out who is capable of being “chosen or of sitting as a senator or a member of the House of Representatives”. It describes this eligibility in the form of who is not allowed to be nominated or elected.

As a simplistic summary, this includes dual citizens, someone who has been convicted and under sentence or awaiting sentencing for certain offences, an undischarged bankrupt or insolvent, a person who holds any office of profit under the Crown, or a person with any direct or indirect pecuniary interest in any agreement with the Public Service of the Commonwealth.

Before the dual citizenship “conspiracy” swept through Parliament, section 44 was already in the spotlight. It is not the first time this year that Senators have fallen foul of the provision.

In February, the High Court ruled that One Nation Senator Rob Culleton’s election was invalid due to “a conviction at the time of the election” even though that conviction was later annulled. Mr Culleton was also found by the Federal Court to be an “undischarged bankrupt”, another ground for disqualification if the first hadn’t sufficed.

In April, the High Court ruled that Family First Senator Bob Day was invalidly elected because of leasing arrangements for his South Australian electorate office.

Labor has also referred National MP David Gillespie to the High Court due to a potential “direct or indirect pecuniary interest” for his ownership of a suburban shopping complex in Port Macquarie, which houses an Australia Post outlet, a government-owned corporation. This case still awaits judgment.

Yet it wasn’t Day and Culleton’s downfalls which led to cries of “conspiracy” and a backlash against section 44. Nor was it Labor’s attempt to destabilise the Government by referring David Gillespie to the High Court.

No. It is the dual citizenship provision, section 44(i), which has raised the ire of commentators.

And only after an embarrassing display of ignorance and some fancy excuses saw the resignation of Greens Senators, Scott Ludlam, and Larissa Waters, the High Court referrals of National’s Senator Matt “My Mum Did It” Canavan, followed by One Nation Senator Malcolm Roberts, (who claims to have never been British, Indian, or a “chucker”, but possibly a Sovereign Citizen), and the latest, Deputy Prime Minister and New Zealand’s proudest Australian, Barnaby Joyce.

This political game of Dual Citizenship Dominos has come as a shock to many. But it shouldn’t.

It’s not like the Constitution has been around since 1900.

It’s not like the constitutional issue of dual citizenship has already been raised this year in an attempt to see Bob Day’s potential replacement, Lucy Gichuhi, ruled ineligible to sit due to her former Kenyan citizenship.

It’s not like Liberal backbencher Tony Abbott has been pursued mercilessly over his alleged dual citizenship with Great Britain for years.

It is also not like the Government has debated at great length about dual citizens, in the context of how the Minister may arbitrarily cancel a dual citizen’s Australian citizenship if that person offends the Minister so.

What seems to have caused the display of incredulation and dismay, and the sudden realization of the ramifications of section 44, is that it has caught up some popular, totes ‘Stayan mate, politicians.

The questions around the appropriateness of section 44 have come about because “ordinary” Aussie’s in the Senate and House of Reps were caught unawares over their dual citizenship.

Given the identities of those caught out by section 44(i), it is unsurprising the renewed interest in revision.

However, it is precisely because of the identities of the Unfortunate Five, that any call for a change should be heavily scrutinised.

For example, imagine if Ludlam, Waters, Canavan, Roberts and Joyce, instead of being New Zealanders, Canadians, potential Brits or Italians, were from the Middle East, former Soviet Union or Asia …

Would public commentators be demanding the Constitution be changed, or would they be calling for the respective parliamentarians to be jailed and/or deported?

This raises a further question.

If section 44(i) is changed to allow dual citizens, what criteria should be in place to decide which dual nationalities are acceptable, and which are not? How would real or perceived conflicts of interest, which may impact on the integrity of parliament, be addressed and mitigated?

Should a dual national be ineligible if they are a citizen of a country subject to an Australian sanction regime (either in conjunction with UNSC or autonomously)? Imagine if a Syrian dual national was nominated. What about North Korean?

Do we say parliamentarians can be dual citizens provided we are not in direct conflict with the foreign nation? How serious does that conflict need to be? JBish has caused a serious diplomatic incident with Australia’s closest neighbour in her desperation to blame Labor for Kiwi Joyce’s dual status.

What about historical alliances? How far back do you go? The Allies? That may well rule out half of Europe, but the Soviet Union is in. So maybe the Western Bloc? Will Australia need to choose sides when Brexit negotiations get ugly (even though it has nothing to do with our nation)? Will that mean British dual citizens are ace, but European dual citizens are out?

What about current alliances? That could change any minute and result in bi-elections every 6 months, given the precarious nature of Donald Trump’s Rule By Twitter, and Turnbull’s tendency to lavishly lick Trump’s butthole when it comes to backing him up.

Or perhaps we could exclude any person who has ever worked for a foreign government or served in foreign forces or is obliged to serve in a foreign force? So that rules out any country with mandatory national service and there are a few of those.

Given the identities of those parliamentarians currently caught up in the scandal (bar Canavan), perhaps what those calling for an amendment to section 44 mean is that dual citizenship is fine as long as it’s with Mother England and any of her former colonies. Because it’s not like Australia deliberately enacted the Australia Act 1986 to override the notion of Britain being so Great it encompassed Australia as well.

Perhaps a simple requirement is that as long as English is the first language … No wait. That is just a little bit too obviously White Australia Policy and excludes Indigenous Australians too.

So maybe the nominee will be required to speak the level of English the Government has proposed for Australian citizenship, making other allegiances moot? But that knocks out the Irish based on the current test, anyone without a university degree (from a Western University), and probably a few that do.

What a conundrum. Just how should the newly revised Constitution determine who is eligible to be chosen or sit?

Perhaps there is a simple solution. Leave the Constitution how it is, and tough to those politicians who “can’t manage basic admin“.

An aspiring politician is obliged to confirm they are not “under any acknowledgment of allegiance, obedience, or adherence to a foreign power,” or “a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power”, when they nominate with the AEC. They must take the time to conduct due diligence checks on their own lineage, and where applicable renounce their foreign citizenship or decline to nominate.

It is a whole lot easier for potential representatives to check their place of birth, their parents’ nationality and place of birth (and in some cases, grandparents), than to decide which dual nationality is acceptable.

But maybe that is still just a tiny bit too complex. Just ask the 5 so far and counting.

 


28 comments

  1. kerri

    Well said Eva. The stupidity is astounding. Laurie Oakes summed it up well.

  2. OPPOSE THE MAJOUR PARTIES

    Agreed. the problem is not with the restriction on dual citizenship or with the definition of citizenship but with the nomination process. candidates nominating should prove their eligibility at nomination. none of this would arise if the self regulating ‘honesty system’ were not in place and the AEC had greater authority and resources to scrutinise eligibility at the nomination stage before an election. but of course the Abbott’s and Abetz’s of this world would not like that.

  3. townsvilleblog

    The Governor General should postpone the parliament until all elected parliamentarians can be classified as having 100% alliance to Australia. If people want to have divided loyalties they should not run for office in the federal parliament.

  4. Clean livin

    And it may catch out all the Micks, as the Holy See is an internationally recognised Sovereign state that gives its adherents special privelages that non RCs don’t have!

    Think of the possibilities…..Abbott quickly comes to mind!

  5. Florence nee Fedup

    Keep in mind many seem to have had no trouble interpreting S44.

  6. Ross

    Sure, change the constitution by a referendum if you can. There is only a slim chance it would get up in light of the current fiasco and the governments hysterical reaction to being caught out by S44.
    What seems to get lost is the constitution as it stands today, in the words of deputy PM Barnaby Joyce,
    ”but it’s quiet clear on Section 44, you can’t be a member of parliament and have dual citizenship – it’s black and white”.
    In can’t be more black and white than when the conservative Prime Minister of New Zealand announces on TV Barnaby Joyce was a citizen of New Zealand at the time of his nomination.
    I doubt if the government or Mr Joyce can recover from what is a fiasco of their own making and it would appear there is a long way to go for it to get even worse.

  7. pierre wilkinson

    The delicious irony of Barrrbnaby “hoist on his own petard” after his strident decrying the fact that ignorance is no excuse…
    and the abject hypocrisy of a government that when in opposition did all it could, including stealing the speaker’s diary, to bring down an elected government.

  8. Roscoe

    let them do their work properly themselves, I don’t know how many of you have had to deal with Centerlink but they turn everything into the most horrendous set of hoops you have to jump through to suit their fancy. if it is good enough for us, it is good enough for the pollies to have to comply with absurd rules

  9. Florence nee Fedup

    My daughter has dealing with Centrelink since she separated. Is working more than 20 hrs . meaning she doesn’t have to go to a job agency. Gets email on more than one occasion that appointment has been made next day. She ignored this, having her small benefit cut. Was told she was correct and it wouldn’t happen again.

    She is rudely told she has to keep her appointments while on the dole??? She suggest they read the file.. They once again agreed she was right. They then ordered her to cancel the appointment,

    She refused as she didn’t make the appointment, she couldn’t cancel it. After more argument, the worker told her she would do her a favour and do it for her. My daughter has few hundred dollars credits on her mobile which she has never used, until having to deal with Centrelink.

    The rudeness is unbelievable and unnecessary.

  10. diannaart

    I don’t see any reason why S. 44 needs changing – that would require constitutional change, do we really need open that can of referendum worms?

    Anyone at any time can relinquish their dual or multi(?) citizenship, it involves contacting the other countries and in writing renounce said nation and ensuring an acknowledgement is received from the other country – this can be a bit tricky for countries such as Iran, just ask Sam Dastyari.

    What we can do is ask serving politicians with dual citizenship to stand down UNTIL they have agreed to renounce the foreign citizenship, or leave politics completely if they wish to keep dual citizenship, though this would leave them subject to charges due to Section 44 infringement.

    It is not the most difficult problem we face right now!

  11. Michael Fairweather

    Leave it as it is and enforce it where it is abused.

  12. Nato

    I don’t want to cause a ruckus but can’t you try to feel empathy with Barnaby Joyce this time.
    The man has made a name among The Nationals for being so nationalistic! I believe that he didn’t know the New Zealand government changed the laws so that he is and always had been a New Zealander. I believe that he checked his citizenship status before 2001 and found he held no ties to New Zealand.
    I don’t see how that matters to the High Court case. He was an NZ citizen when he was first elected to the senate when the law change was 2 1/2 years old.

  13. Michael Taylor

    Turnbull has told Nash there is no need for her to step down.

    Ah well, if at first you can’t change the law … ignore it.

    PS: I wonder if this one will be Labor’s fault too?

  14. Michael Taylor

    Turnbull clearly thinks that the High Court will see things his way. If not, he better call on Plan B if he has one.

  15. Freetasman

    Assuming that the Governor General is imparcial ( I know, I am not naive) can he do something about this? There are now 3 members of the government that should resign like the Greens members have it done.
    This is a coming close to a Brazilian style government and something have to be done about it.

  16. Pete Petrass

    Being that this is an issue that is supposed to be sorted by individuals BEFORE they can be selected as candidates why is it that the taxpayer must now fund their legal procedures at massive cost??? Why should Mr 77 votes sit there and demand to produce his own paperwork before no less than the High Court???

  17. Florence nee Fedup

    Why should there be new elections. One where it seems they are going to run again.

    There need to be a penalty for offender and the party.

    No by-election. Runner up in last election given the seat.

    Truth is they have ignored the law. Ignorance no excuse.

    Says citizen or right to be citizen of another country, That is clear enough.

    GG needs to step in.

    Nash has known since Monday. If Bernadi is correct, there are more.

    It has move on from incompetence, a joke.

    We are in a serious parliamentary crisis.

  18. Joe

    @Florence nee Fedup. I read an article the other day that suggests the constitution allows for the next person with the highest vote to petition the high court to fill the vacancy. In this case it would be Tony Windsor. I hope this is correct and if so I hope someone would alert Windsor to the fact just in case

  19. Wendy Maguire

    It’s interesting that the father is used as the criteria for citizenship. Unless there is a blood test, fatherhood cannot be assumed.

  20. Freetasman

    This has become a joke, now Nick Xenophon has approached the British Home Office to check his citizenship status, conceding he is unsure if he is a dual citizen.

  21. diannaart

    How about we tip all the pieces off the board and start again?

    I AM spitting furious that Greens gracefully step off the stage, but Joyce doesn’t? AND we are asked to feel sorry for him?

    One rule for the LNP, another for the rest – although if Labor does manage to throw up at least one doubtful dual-cit – you can bet the LNP are doing their damnedest to find out – will Labor step aside al la Greens or grasp like its death or victory and fight it out in the courts (taxpayer funded, as duly noted by yours truly)?

  22. Freetasman

    I would put it different diannaart, there are two that respect the law and there are others that do not respect it and put their own interest and the interest of their party before the laws of the country which should not surprise as at all.

  23. diannaart

    Freetasman

    I would posit we agree in kind if not in expression.

    🙂

  24. Glenn Barry

    Hopefully LNP taunts about the Greens senators play against them in the high court, that is what they deserve…

  25. Wam

    Born in australia no country can claim citizenship except under the conditions of cavan. So baanaby is not a kiwi but cavan is an itie.
    Ludlum etc were born overseas should have been aware of the possibility of dual citizenship. They rightfully resigned because of their oversight.

  26. jamesss

    Well well, everything is coming home to roost for our corporate gangsters. I hope the high court delivers the ugly truth those idiots deserve. Too bloody lazy to take responsibility to do a little admin. There are no excuses. Happiness and joy is permeating throughout for those watching the chaos.

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