The 2017 Dual Citizenship Debate

In 2017-18, the Dual Citizenship debate arose when several members of Parliament were questioned about their eligibility to be elected to parliamentary positions on the basis that they held another citizenship, leading to what some referred to as a “constitutional crisis”.   The crisis came to a head in July 2017 when six members of Parliament, including the then Deputy Prime Minister Barnaby Joyce, faced intense scrutiny about their possible dual citizenship status, resulting in the High Court of Australia having to examine the meaning of Section 44(i) of the Constitution. 

What is Dual Citizenship?

Many Australians hold two or more nationalities.  As well as holding Australian citizenship, they might be citizens of another country or more than one country.    Not all countries allow dual or multiple citizenship.  Australia does, provided the other country/s also allows it – it has to work both ways.  That being said, Australia does not allow dual nationals to serve in parliamentary positions. 

The Australian Constitution

Section 44 of the Australian Constitution (“the Constitution”) provides several express restrictions on who can be a candidate for federal parliament. One of those is contained in Section 44(i), which stipulates

any person who …  is under any acknowledgement 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 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.

In addition, the Commonwealth Electoral Act 1918 (Cth) requires candidates for the federal Parliament to hold Australian citizenship.    

High Court Interpretation of Section 44(1)

The High Court of Australia has historically interpreted Section 44(i) of the Constitution to mean that dual citizens are ineligible to stand for election to federal parliament, and in Sykes v Cleary, Brennan J affirmed that the purpose of s 44(i) is “to ensure that no candidate, senator or member of the House of Representatives owes allegiance or obedience to a foreign power or adheres to a foreign power” [at 109], and “to ensure that foreign powers command no allegiance from or obedience by candidates, senators and members of the House of Representatives.” [at 113]. 

In addition, the High Court has previously held that becoming naturalised as an Australian citizen is not enough on its own to escape the Section 44(i) disqualification.  

In 1999, the High Court decided the case of Sue v Hill (1999) 199 CLR 462, a case which involved a Senator who held both Australian and British citizenship at the time of her nomination.  In handing down its decision, the High Court not only affirmed the decision of Sykes v Cleary, it also extended the definition of “foreign power” to include Britain.  This was a significant development, because by extending the definition of “foreign power” in this way, the High Court effectively set a precedent declaring the whole of the United Kingdom to be a “foreign power” for the purposes of Section 44(i) of the Constitution.   

Sue v Hill set the scene for a number of cases in the High Court that were to follow.

In October 2017 in Re v Canavan [2017] HCA 45, the High Court determined unanimously that five out of six members who were being nominated for election to federal parliament at the time should be disqualified pursuant to Section 44(i), on the basis that they were dual citizens. In that case, the High Court considered the ordinary and natural meaning of the language of section 44(i) and cited the plurality in the earlier decision of Sykes. The High Court held the interpretation of the majority of the judges in Sykes avoided the uncertainty and instability that would inevitably arise from any competing interpretation.  Applying that precedent in the Canavan case, the High Court unanimously declared five individuals were disqualified to stand for election, by reason of Section 44(i) of the Constitution.  In relation to Senators Matthew Canavan and Nick Xenophon however, the High Court held neither of those two individuals were citizens of a foreign power within the meaning of Section 44(i) and consequently, neither Senator should be disqualified.  

Implications of the High Court Interpretation

Following the decision of Re v Canavan, a further three senators were effectively forced to resign in November 2017 after their dual citizenship status came to light.  Several other cases of a possible breach of Section 44(i) of the Constitution were also revealed.   In an attempt to stem the tide, the then Prime Minister Malcolm Turnbull announced plans to resolve any future repeat of the citizenship crisis by requiring Ministers of Parliament to pre-emptively lodge declarations and produce evidence that they are not foreign citizens at the time of nomination.  

In May 2018, the High Court heard a series of cases together.  These cases became known as the “Citizenship Seven” case.  In Re Canavan; Re Ludlam; Re Waters; Re Roberts [No 2]; Re Joyce; Re Nash; Re Xenophon (the “Citizenship Seven” case), the High Court unanimously held that “reasonable steps” must be taken when renouncing citizenship to gain exemption from Section 44(i).  The judges were unanimous in their decision, declaring Australian citizens should not be prevented from participating in representative government 

“where it can be demonstrated that [they] took all steps reasonably required by foreign law to renounce his or her citizenship of a foreign power”   

Exactly what this requires however depends on the circumstances of each particular case and it will also depend on the law of the relevant foreign country. 

Following the Citizenship Seven case, there were calls for a referendum to be held at the next federal election to amend Section 44(i) of the Constitution to make the criteria upon which dual citizens may be disqualified clearer. Academic Professor George Williams, a Dean of Law at the University of New South Wales, opined that Section 44(i) was designed to ensure that Ministers are “singularly loyal to Australia”, but that it does not require an MP to step down if they are unknowingly a dual citizen.

As an interesting side note, it is worth mentioning here the foreign interference laws that were introduced by the Federal Parliament in 2018.  The following laws were introduced by the Liberal (Turnbull) government in mid 2018:    

1. National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2018

2. Foreign Influence Transparency Scheme Bill 2018 

Attorney-General the Hon Christian Porter said Australia’s national security had been greatly enhanced with the successful passage of these two Bills, calling them “strong new laws against those who seek to undermine our national security and our democratic institutions and processes”. 

What is a Foreign Power?

Returning however to our discussion on the Constitution, what exactly is a “foreign power” pursuant to Section 44(i)? 

Since the dual citizenship controversy arose, some academics have suggested that Section 44(i) is out of date and should be amended to reflect the current political landscape in Australia.  Interestingly, it is not the Constitution but the interpretation of that section which has changed over time.  Historically, a reading of Section 44(i) would probably not have disqualified British citizens or citizens from any other Commonwealth countries such as Canada or New Zealand from being elected to parliament.  Its interpretation was arguably limited to ensuring that ministers of parliament had a clear and undivided loyalty to Australia and would not be subject to improper influence from foreign governments.  In this regard, the history and context of Section 44(i) is important to bear in mind.  

It must also be remembered that the legal concept of Australian citizenship did not exist until 1949.  However, since the decision of Sue v Hill, holding citizenship of any country other than Australia has been interpreted to mean being a citizen of a “foreign power”.  In Sue v Hill, the judges were unanimous in their interpretation of Section 44(i) and proponents for that interpretation argue it has created certainty and stability in the definition of that section moving forward.  

Interestingly, Section 44 mentions the word “allegiance”, which has quite a broad scope for interpretation, especially when it is considered in the context of the growing reality of dual nationality in many countries, not just Australia.  Until now, the High Court has mostly confined its interpretation of the word “allegiance” to the holding of citizenship under the Constitution, without reference to any other aspects.  However, if one were to consider the reasoning of the majority in Sykes v Cleary, it is quite possible that a theoretical door has been opened, in which the question of a person’s connection to a foreign country could be seen as potentially relevant to the interpretation of Section 44(i). 

Dual Citizenship into the Future

Irrespective of current government policy or preference, in a global economy where instant communication and significantly increased personal mobility is commonplace, it is only natural to expect there will be Australian citizens who will want to maintain dual citizenship.  In other words, it is not simply an academic concern.  Dual citizenship facilitates economic globalisation, increased personal mobility, communications, travel, business and work opportunities and this results in tangible benefits for Australia as a whole.  The reality is there are a large number of Australian citizens who were born overseas who might wish to remain dual citizens.  In addition, there are also a large number of Australian citizens who might not be aware that they are dual citizens. This highlights some of the complexities surrounding the issue of dual citizenship in Australia as well as the significant number of people who are potentially disqualified by Section 44(i).  

In theory at least, unintended or unwanted foreign citizenship should not be regarded as amounting to foreign allegiance.  Nevertheless, the provision in the Constitution that members of Parliament should not hold dual citizenship exists for good reason and remains clear. It can be explained as being about a number of things, including the intangible value of Australian citizenship as a source of national identity, pride, sovereignty and security.  It is also about ensuring the integrity of parliament and the loyalty of MPs. Members of Parliament should be seen as being free from foreign influence (such as for example the influence of foreign donations) and should not be regarded as “commodities”, who could become potential targets for economic, trade, political or other foreign agendas.  

Since the 2017-2018 dual citizenship controversy arose, some academics have suggested that Section 44(i) of the Constitution is out of date and should be amended to reflect current Australian values.  On the other side of the coin, proponents who oppose the need for any amendments to the Constitution argue it is the not the current wording of Section 44(i) that is the problem but its interpretation, which has changed over time.  Historically, the same section would probably not have disqualified citizens of Britain or Commonwealth countries such as Canada or New Zealand from being elected to Parliament, but at some point in time, legal precedents and the judiciary provided a different interpretation to that section. Certainly, since the 1999 case of Sue v Hill, citizenship of a country other than Australia is considered to be citizenship of a “foreign power”.  

Possible amendment of Section 44(i) of the Constitution raises a whole new set of issues. The Constitution can only be changed with the approval of the Australian people.  The proposed change would have to be approved by Parliament and then it would have to be put to the Australian people in a referendum.   

The key when considering potential changes to Section 44(i) of the Constitution is to consider the appropriate balance that needs to be struck between maximising participation in federal parliament by Australian citizens and doing what is reasonable and necessary to protect the national interest.