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This blog post is by CRU Intern, Ashley Kelaita:

Since late last year, the Australian Commonwealth Parliament has been plagued by a dual citizenship imbroglio, resulting in the disqualification of several parliamentarians under section 44(i) of the Constitution and a string of resignations. This 'saga' has directed attention towards the scope and operation of section 44(i), resulting in calls for constitutional amendment by academics and politicians alike –– most recently by the Joint Standing Committee on Electoral Matters (JSCEM) in May 2018. This article will first outline section 44(i)'s operation in light of the High Court's decisions in Re Canavan [2017] and Re Gallagher [2018], canvas the previous reform proposals, and end with a discussion on the key possibilities for future reforms.

Section 44(i): Purpose and Operation

Section 44(i) of the Constitution provides:

44. Disqualification

Any person who:

(i) 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 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 purpose of section 44(i) is to prevent members of the Commonwealth Parliament from having split allegiances, and, in turn, to mitigate the risk of foreign interference in the Australian parliament. Concerns about split allegiance were raised in the Australasian Federal Convention debates, during which members commented that persons possessing a dual allegiance were 'not to be trusted'.

Section 44(i) contains two distinct limbs. The first limb prohibits a person who is 'under any acknowledgement of allegiance, obedience or adherence to a foreign power' from standing for election or sitting in the Commonwealth Parliament. This limb captures those who have voluntarily acknowledged allegiance, obedience or adherence to a foreign power and, according to the High Court in Re Canavan, focuses on the 'conduct of the person concerned'. Conversely, a person is rendered incapable of standing for election or sitting as a senator or member under the second limb if they are a 'subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power'. This is a matter to be determined by the relevant foreign law, and focuses on the existence of a state of affairs rather than the person's conduct. A candidate or member may therefore be disqualified under section 44(i) even if they are unaware of their foreign citizenship status.

In Re Canavan the High Court, sitting as the Court of Disputed Returns, drew on the previous case of Sykes v Cleary and held that Australian dual citizens will not be disqualified under section 44(i) if they have taken 'reasonable steps' within their power to renounce their foreign citizenship. This exception is underpinned by the 'constitutional imperative' that 'an Australian citizen not be irremediably prevented by foreign law from participation in representative government'. The narrow scope of the 'reasonable steps' test was emphasised in Re Gallagher, where the High Court held that the test will only apply in circumstances where foreign law presents an 'insurmountable obstacle' to renunciation; in other words, where renunciation is impossible or not reasonably possible under the relevant foreign law. Anything less than this standard will not engage the constitutional imperative. These recent decisions have sparked debate as to whether section 44(i) is fair and should remain in Australia's Constitution.

Previous Reform Proposals

Section 44(i) has been the subject of many reviews since the early 1980s.

The Senate Standing Committee on Legal and Constitutional Affairs recommended in its 1981 report that section 44(i) be deleted. The Senate Committee was concerned that section 44(i) would bar all Australian dual citizens –– including those whose foreign citizenship could not be 'voluntarily relinquished' under the relevant foreign law –– from standing for election or sitting in the Commonwealth Parliament. Notwithstanding these concerns, the Committee recognised that section 44(i) contained important safeguards which were worth preserving. It further recommended that a provision be inserted in the Commonwealth Electoral Act 1918 requiring candidates for election to disclose any non-Australian nationality and state that they have 'taken every reasonable step' to 'divest themselves of the non-Australian nationality'. The provision would also require candidates to state that they will not take 'conscious advantage of any rights, privileges or entitlements' conferred by their 'unsought nationality'.

In 1985, the Structure of Government Sub-Committee of the Australian Constitutional Convention expressed agreement with the 1981 Senate Standing Committee recommendations in its Report on Constitutional Qualifications of Members. However, the Sub-Committee noted that the Senate Standing Committee did not address the situation where a member 'voluntarily acquired another nationality after election'. The Sub-Committee further recommended that a provision be inserted in the Constitution requiring members and senators to vacate their seat in the event that they cease to be an Australian citizen, with a 'general power for Parliament to deal with other situations as they arise'.

The 1985 Brisbane Session of the Australian Constitutional Convention expressed its support with the recommendations of the 1981 Senate Standing Committee and 1985 Structure of Government Sub-Committee, and moved a motion supporting constitutional amendment of section 44(i). The Brisbane Session recommended that section 44(i) be amended along the following lines:

(i) By his own volition is under any acknowledgement of allegiance, obedience, or adherence to a foreign power, or is voluntarily a subject or a citizen entitled to the rights of a subject or a citizen of a foreign power and retains such rights, privileges and duties. Provided that this subsection does not apply to a person who is vested with citizenship involuntarily and who has made all reasonable efforts to renounce a foreign citizenship or other allegiance, obedience, or adherence to a foreign power.

The members of the Brisbane Session raised similar concerns to the 1981 Senate Standing Committee: particularly, the unfairness raised where an Australian dual citizen is unable, under the laws of the relevant foreign country, to relinquish their foreign citizenship. However, the Brisbane Session members still agreed that it would be inappropriate for a senator or member to 'voluntarily maintain a second citizenship'.

The 1988 Constitutional Commission recommended that section 44(i) be deleted and not replaced, with Australian citizenship being the only minimum requirement for nomination and election. The Commission's reasoning was centred on the view that section 44(i) was 'absolute' and 'unqualified' in its operation, and would exclude Australian dual nationals from being members of the Commonwealth Parliament even if they were unable to relinquish their foreign citizenship under the laws of a foreign country. In making this recommendation, the Commission drew on the 1987 report of the Advisory Committee to the Constitutional Commission on Individual and Democratic Rights, which recommended that a referendum be called to amend section 44(i) given its rigid and inflexible operation.

It is important to note that all of the above recommendations pre-dated the High Court's interpretation of section 44(i)'s operation in Sykes v Cleary; where the Court held that section 44(i) will not disqualify Australian dual citizens who have taken 'reasonable steps to renounce their foreign citizenship'. This case eliminated concerns that section 44(i) had an overly-restrictive operation and would disqualify Australian dual citizens who were unable to renounce their foreign citizenship under foreign law. As the above committees and conventions were motivated by this concern in their recommendations to delete or amend section 44(i), one must question whether these recommendations would have been the same post-Sykes v Cleary.

In 1997, the House of Representatives Standing Committee on Legal and Constitutional Affairs recommended that section 44(i) be deleted and that parliament be empowered to 'enact legislation determining the grounds for disqualification of members in relation to foreign allegiance'. The Committee highlighted the need to ensure that parliamentarians have undivided loyalty to Australia, but considered section 44(i) to be out-dated as it is expressed in 'archaic' language and was drafted before the concept of Australian citizenship existed. Despite calling for section 44(i)'s removal from the Australian Constitution, the Committee recommended that appropriate legislative safeguards be introduced to prevent divided loyalty. The Committee expressed a preference for the following legislative protections: (1) An amendment to the Commonwealth Electoral Act 1918 prohibiting candidates from taking advantage of any foreign citizenship or engaging in any activities that may be construed as acts of allegiance to a foreign country; and requiring candidates to record their date and place of birth on their nomination form; or (2) That the text of section 44(i) be preserved in legislative form. These recommendations were supported by the Australian Citizenship Council's 2000 report Australian Citizenship for a New Century.

Section 44(i) was also considered by the JSCEM in its inquiry into the 1996 and 1998 federal elections. In 1996, the JSCEM proposed that section 44(i) be deleted as it would be 'reasonable in contemporary Australia' for candidates and members of parliament to hold dual citizenship. Candidates would, however, be required to declare any foreign citizenship on their nomination forms. In its 1998 inquiry, the JSCEM recommended that a referendum be held to amend section 44(i) so that a candidate's act of nomination is recognised as 'immediately extinguishing any allegiance to a foreign country', provided that the candidate also held Australian citizenship.

The JSCEM most recently considered section 44(i) in its May 2018 report Excluded: The Impact of Section 44 on Australian Democracy. The report recommended that a referendum be called to either repeal sections 44 and 45 of the Constitution in their entirety, or amend sections 44 and 45 to include the words 'Until the Parliament otherwise provides'. If the referendum passes, the JSCEM further recommended that the Commonwealth Government set out the rules governing disqualification in legislation. This would ensure that the rules are easily capable of being amended and aligned with contemporary Australian community standards. The report acknowledged that a significant portion of the Australian population are disqualified from nominating for election under section 44(i) even though they are eligible under section 34; negatively impacting political participation. The JSCEM ultimately concluded that parliamentarians must be loyal to Australia, but possessing or being entitled to dual citizenship 'does not in and of itself' mean that candidates have a split allegiance.

Current Reform Options

The Australian Government can embark on one of two routes: call a referendum to amend or repeal section 44(i), or leave section 44(i) in its current form. The latter option is compelling, given that the recent dual citizenship 'saga' was the result of the candidates' failure to ensure compliance with section 44(i), rather than an issue with section 44(i)'s underlying principle.

The High Court's recent decisions in Re Canavan and Re Gallagher also dispel the previous uncertainties regarding section 44(i)'s operation; particularly the scope of the 'reasonable steps' test. Therefore, candidates are now more cognizant of the requirements under section 44(i), and will arguably take the necessary steps to ensure compliance with the section in the future.

The main shortcoming with section 44(i)'s operation is that it may result in disadvantages for certain candidates. As slow processing itself does not amount to an 'insurmountable obstacle' to renunciation, it will not fall within the scope of the 'reasonable steps' test. Prospective candidates attempting to renounce their foreign citizenship from countries that have significant bureaucratic delays will be at a disadvantage in the case of snap elections. However, this is not an overwhelming factor in favour of repealing the entire provision. Candidates will merely need to ensure that they lodge the relevant paperwork well in advance if they expect to nominate for election in the future.

Difficult cases where renunciation of the relevant foreign citizenship is impossible or not reasonably possible will fall within the 'reasonable steps' exception. Leaving section 44(i) in its current form would ensure that members of the Commonwealth Parliament have a sole allegiance to Australia –– a value which remains important in Australia, especially in a time of anxiety about foreign interference. Additionally, steps to mitigate the impact of section 44(i), such as advice by the Australian Electoral Commission to prospective electoral candidates regarding foreign citizenship laws and renunciation processes, would also be useful.

If Parliament decided that a referendum was to take place, the recent recommendations of the JSCEM to insert the clause 'Unit the Parliament otherwise provides' in sections 44 and 45, or repeal those sections altogether, would likely be the preferred proposals. Many submissions to the 2018 JSCEM inquiry supported these proposals on the grounds that attitudes towards dual citizenship have shifted in Australia; especially after the 2002 amendments to the Australian Citizenship Act 1948 which allowed Australians to acquire a foreign citizenship without forfeiting their Australian citizenship. However, a successful referendum in the current political climate is unlikely.

Firstly, the chances of a successful referendum are slim, with only 8 of 44 referendum proposals being successful in the past. Secondly, a referendum to repeal or amend section 44(i) would require strong bipartisan support in order to have any chance of succeeding. Establishing this bipartisan support would be difficult, given the Prime Minister's opposition to holding a referendum. The Australian public may also view a referendum to amend or repeal section 44(i) as a self-serving attempt by parliamentarians to remove these impediments to eligibility for political office, instead of holding a referendum on more pressing issues such as Indigenous constitutional recognition.

SUGGESTED CITATION: Ashley Kelaita, 'Section 44(i) of the Constitution: Where to from here?', Constitutional Critique, 5 June 2018, (Constitutional Reform Unit Blog, University of Sydney, http://blogs.usyd.edu.au/cru/).