2017 is one of those strange years that will be remembered for many reasons ... some good, some just plain weird. The good things are the legalisation of marriage equality for LGBTIQ+ people, and One Nation barely winning a single seat in the Queensland election. The weird part however, includes double-standards of a government taking million of dollars in donations from wealthy Chinese businessmen and then seeking the scalp of a junior Labor senator for receiving donations from the same wealthy businessmen. But the one that knocked weirdness completely out of the park was the citizenship debacle that embroiled federal politics and threatened to leave Australia without a functioning parliament.
The debacle was caused by the sudden revelation that a truckload of federal politicians were in breach of Section 44(i) of Australian Constitution, which states:
Any person who 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.
The following were initially caught up in the scandal(1):
- Scott Ludlam, Greens Senator, born in New Zealand - resigned
- Jacquie Lambie, independent senator, born in Australia, has indigenous blood, father born in Scotland - resigned
- Barnaby Joyce, Deputy Prime Minister, born in Australia, parents from New Zealand - resigned, then re-elected in by-election
- John Alexander, Liberal Party back-bencher, born in Australia to British parents - resigned, then re-elected in by-election
- Larissa Waters, Greens Senator, born in Canada to Australian parents - resigned
- Malcolm Roberts, One Nation Senator, born in India of a Welsh father - resigned
- Fiona Nash, Nationals Senator and deputy Nationals leader, born in Australia to a Scottish parent - resigned.
- Nick Xenophon, Nick Xenophon Team senator, born in Australia to parents from Cyprus and Greece - High Court ruled he was not a dual citizen, but resigned prior to the decision to pursue a career in state politics.
As can be seen, many of the politicians were born in Australia, but inherited their citizenship from parents born in overseas countries, otherwise known as citizenship by descent.
After repeated requests by Labor for a full parliamentary audit, the government eventually requested all politicians prove whether or not they were dual citizens, which the government insisted was 'not an audit'. The following were then caught up, with some being deemed to be ok and others either being referred or likely to be referred to the High Court(2)(3):
- Nola McKim (Liberal, House of Reps - refused to release proof)
- Jason Falinski (Liberal, House of Reps - seeking further advice)
- David Feeney (Labor, House of Reps - can't find paperwork, likely to be referred to High Court)
- Nick McKim (Greens, Senate - eligible)
- Louise Pratt (Labor, Senate - eligible)
- Alex Gallacher (Labor, Senate - eligible)
- Dean Smith (Liberal, Senate - eligible)
- Lisa Singh (Labor, Senate - eligible)
- Katy Gallagher (Labor, Senate - referred to High Court)
- Skye Kakoschke-Moore (NXT Senate - resigned)
- Hollie Hughes (Liberal, Senate - ineligible)
- Justine Keay (Labor, House of Reps - may be referred to High Court)
- Rebekha Sharkie (NXT, House of Reps - may be referred to High Court)
- Stephen Parry (Liberal, Senate - resigned)
- Susan Lamb (Labor, House of Reps - may be referred to High Court)
- Josh Wilson (Labor, House of Reps - may be referred to High Court).
- Cory Bernardi (Australian Conservatives, Senate - may be referred to High Court)
- Steve Georganas (Labor, House of Reps - may be referred to High Court)
- Michelle Rowland (Labor, House of Reps - may be referred to High Court)
- Ann Sudmalis (Liberal, House of Reps - provided letter indicating no right to British citizenship)
- Tony Zappia (Labor, House of Reps - provided evidence of renounced citizenship)
Ironically, some of these politicians were citizens of Britain, whose head of state is Queen Elizabeth II and to whom they swear allegiance on entering parliament as required by Section 42 of the Constitution(4). The oath reads:
I, A.B., do swear that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second, Her heirs and successors according to law. So help me God!
The affirmation is almost identical:
I, A.B., do solemnly and sincerely affirm and declare that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second, Her heirs and successors according to law.
So they swear allegiance to the Queen under Section 42 of the Constitution, but cannot be dual citizens of Australia and Britain under Section 44 of the Constitution.
|Mark Knight, Herald Sun(5)|
This crisis may have only arisen this year, but it does beg the question as to how many politicians in previous parliaments were also dual citizens. Considering that Australia is a multi-cultural country that was founded by foreign settlement, it is extremely likely that many politicians have served this nation while being dual citizens - either knowingly or unknowingly.
One way to deal with this is to rigorously enforce Section 44 and for all political hopefuls to prove they have taken all reasonable steps to identify and renounce foreign citizenship. However, given the complexity associated with this, it is realistic to expect there will be future parliaments in which dual citizens will fall through the cracks.
A more robust solution is to modify Section 44 through a referendum.
The Citizen Panda Solution provides two options:
1. Allow dual citizens - they take an oath or affirmation of allegiance anyway. This could also be modified to be allegiance to Australia rather than the Queen. Easy. Keep in mind that state governments are not bound by s44 of the Australian Constitution, so can accommodate dual citizens and still function perfectly well - why can't this apply to the federal parliament.
But if we can't handle easy, then take Option 2:
2. Don't allow dual citizens and require political hopefuls to take all reasonable steps to identify and renounce other citizenship. All reasonable steps should be dependent on the action of the political hopeful, not on the other country confirming the citizenship has been renounced. The reason for this is that not all countries allow renunciation of citizenship, and other countries take months to process a renunciation or may not acknowledge it at all. The political hopeful should not be kept from their political career because of the lack of action of another nation. The following discretions should apply:
- for politicians who were born in Australia and are identified as dual citizens, take all reasonable steps to renounce it, however, if their dual citizenship is discovered after they are elected, give them a grace period of say three months to renounce any citizenship. This is because of the possibility of citizenship by descent not being easily ascertainable and genuine errors being made.
- require political hopefuls born overseas to prove they have taken all reasonable steps prior to the electoral date to renounce their citizenship. Overseas born politicians generally know they are born overseas which makes it easier for them to know they are citizens of another nation. However, in some circumstances, the three month grace period could apply at the discretion of the High Court, for instance, where a person was born overseas but lived in Australia since they were a child and may have not realised their citizenship was still current.
If changes such as these are not made to the Constitution, then it is likely that every future parliament will face a similar debacle. Questions around dual citizenship are not easily resolved by simply casting a discerning eye over a few documents. As shown this year, a number of cases have had to be referred to the High Court for a decision. This cannot continue.
To maintain the status quo is to expose Australia to international ridicule, fuelled by the hostile political climate in which cheap points are scored by our illustrious elected officials taking great delight in tearing each other down ... and taking parliament with them.
1. ABC News, Elizabeth Byrne, Citizenship Seven: Here's how the High Court ruled on each of the cases, 27 October 2017, http://www.abc.net.au/news/2017-10-27/how-did-the-high-court-rule-on-each-of-the-citizenship-cases/9094676. Accessed 17 December 2017.
2. Australian Financial Review, Phillip Coorey, Citizenship crisis: five more MPs facing High Court Referral over dual citizenship, 5 December 2017, http://www.afr.com/news/politics/citizenship-crisis-five-more-mps-facing-high-court-referral-over-dual-citizenship-20171203-gzxwxg. Accessed 17 December 2017.
3. ABC News, Dual citizenship: Which politicians still have questions to answer in this constitutional mess, 5 December 2017, http://www.abc.net.au/news/2017-08-19/whos-next-in-the-dual-citizenship-mess/8819510. Accessed 17 December 2017.
4. Parliament of Australia, The Australian Constitution, Commonwealth of Australia Constitution Act, s42 and Schedule, https://www.legislation.gov.au/Details/C2013Q00005. Accessed 17 December 2017
5. Adelaide Now, Dean Jaensch: Political mess is one more example of the need for reform of the Constitution, 22 August 2017, http://www.adelaidenow.com.au/news/opinion/dean-jaensch-political-mess-is-one-more-example-of-the-need-for-reform-of-the-constitution/news-story/60cf02f393a434ea9c1893d358edcf74. Accessed 17 December 2017.