The s44 dual citizenship circus

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If most Australians were either born overseas or have parents who were, why has Section 44(i) not provided far more entertainment over the years? Barry Hindess takes a look at the history behind dual citizenship and the Constitution.

WHILE OUR mainstream media have been full of reports about the political repurcussions of the dual citizenship of several senators and at least one member of the House of Representatives, another question of citizenship has more or less slipped under the radar.

That is, the minister for protecting our borders and brutalising asylum-seekers, Minister for Immigration and Border Protection Peter Dutton's proposals for a tougher citizenship test for would-be Australians. A Parliamentary Inquiry into this question is currently under way, but it receives little media attention compared to the dual-citizenship circus.

Without disputing the importance of the proposed new citizenship test, it is worth asking why dual-citizenship is such a big deal in Australian politics today. The short answer, although it soon gets complicated, is Section 44 of the Australian Constitution Act. The Act disqualifies various persons from being chosen or sitting as a senator or member of the house of representatives.

Among those disqualified, as subsection (i) makes clear, are persons who are:

'... 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.'

Section 5 specifies that: 

'This Act, and all laws made by the Parliament of the Commonwealth under the Constitution, shall be binding on the courts, judges, and people of every State and of every part of the Commonwealth ... '

Thus, if any government were to ignore Section 44(i) and press on regardless, their actions would be open to challenge in the High Court. Section 44(i) is written into our Constitution we are stuck with it, at least in the short term. That is, until we can agree to change our Constitution under the procedure set out in Section 128 — in effect, through a bill passed in both houses of parliament, gaining support from majority of voters and a majority of states.

Specialists in constitutional law, such as Anne Twomey writing in the Sydney Morning Herald on 27 July 2017, tell us that the restriction in Section 44(i) can be traced back to the 1701 British Act of Settlement, which specifies, along with other disqualifications, that

'... no person born out of the Kingdoms of England, Scotland, or Ireland, or the dominions thereunto belonging (although he be naturalised or made a denizen, except such as are born of English parents) shall be capable to be of the Privy Council, or a member of either House of Parliament...'

At the time of the Act of Settlement, Catholics were prohibited from membership in Parliament, in part, because they were widely suspected of allegiance to a foreign potentate, the Bishop of Rome. The Act itself was not primarily concerned with members of Parliament but rather with consolidating the new Protestant monarchy (of William and Mary) and establishing a line of Royal succession designed to ensure no Catholic would ever come to the throne.

This last followed the Bill of Rights 1689 complaint:

'It hath been found by experience that it is inconsistent with the safety and welfare of this Protestant Kingdom to be governed by a Papist Prince.'

Certainly the Act and Section 44(i) of the Constitution both disqualify foreigners from Parliament, but only the latter mentions subjects or citizens of a foreign power.

The Section 44(i) mention of citizens is also curious for another reason. The Australia Constitution Act was passed by the British Parliament at a time when British law had no concept of "citizen". Britons living in the UK or its colonies were all considered subjects of the Queen because the UK was formally a monarchy. The term "subject" was used because, in a monarchy, the monarch is the nominal source of authority in whose name all legal power is exercised.

This focus on the monarch, long preceded the Australia Constitution Act. For example, towards the end of the English Civil War, Parliament issued a warrant "in the name of the king" for the arrest of the defeated King Charles! The British colonies in Australia that came together at Federation in 1901 could not agree on a legal definition of an Australian citizen. So what is the word "citizen", albeit referring neither to Britons nor Australians, doing in the Australian Constitution?

Although the colonies could not agree on how to specify who was or was not an Australian citizen, they shared a rough idea of what the term citizen referred to: members of a republic (a state governed by its citizens) who possesses the rights and obligations of citizenship — rights of residence and protection and corresponding obligations to pay taxes and to defend the republic when required.

It is the danger that an elected representative might be under obligation to a country other than Australia that is the premise of Section 44(i). Similarly for subjects of a foreign monarch — we don't want to risk them legislating for us in Parliament. The worry here is not far removed from current concerns over foreign donations to political parties.

Federation happened at a time when British subjects living in Australia were concerned about French and German activities in the South Pacific. French men and women were all citizens while Germans, like Britons, were subjects, in this case, of the Kaiser. Section 44(i) disqualifies all of them.

The archaic and vaguely republican understanding of citizenship that informs the Australian Constitution is likely to be of more interest to historians and academic political theorists than to anyone concerned with the role citizenship plays in the world today. Now, citizenship of a state is normally a kind of privilege (worth more in prosperous states than in others) giving one the right to live within its territory, to travel documents and, sometimes, to consular assistance if one gets into trouble overseas. Although a few small, poor states have been known to offer wealthy foreigners citizenship, without the right to settle, in return for suitable payment, this is not the Australian Constitution's view of the matter.

Whatever loyalty most of us feel towards Australia is as much a function of participating in the life of our society as it is of our status as citizens and, partly for this reason, I seriously doubt that Australian citizens will have a greater loyalty to Australia than most long-term permanent residents. 

Finally, why is dual-citizenship an issue now? Perhaps if Scott Ludlum had kept his mouth shut, he and everyone else caught up in this circus could have continued to draw their generous Parliamentary salaries in peace. Or, to complicate the issue just a little further, if Ludlum had not been alerted to the significance of Section 44, albeit to subsections other than (i), by the fates of Senators Day and Culleton, the circus would never have got off the ground.

Yet, if all it takes is for one political party to go after an elected representative from another party and if most Australians were either born overseas or have one or both parents who were, why has Section 44(i) not provided far more entertainment over the years?

Barry Hindess is an emeritus professor at Australian National University’s School of Politics and International Relations. You can follow him on Twitter @barryhindess.

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