Here’s a fine mess

The great citizenship debacle rolls on, and it’s hard to see anyone coming out of it looking good.

The primary blame goes to the High Court which decided to use an absurdly literal interpretation of the Constitution to knock out a couple of independent candidates back in the 1990s (they’d been naturalised but hadn’t properly revoked their previous citizenship). If the first person to fall afoul of this interpretation had been a senior government minister, I have no doubt the Court would have decided differently. But literalism and precedent are a disastrous combination.

Apart from Scott Ludlam and Larissa Waters (and the Greens more generally), the politicians haven’t covered themselves in glory either. Those who think themselves safe have mocked those who’ve been caught, sometimes ending up with egg on their faces. And the actions of senior government figures who concealed the problematic status of Senate President Parry (apparently keeping it from the increasingly pointless PM and A-G) have made matters worse.

Then there’s the great Australian public, who will almost certainly reject any attempt to fix the problem, because they don’t like politicians. I’ve run across heaps of people saying it’s just a matter of “due diligence”, an odd phrase to use of hoop-jumping that can take months and cost tens of thousands of dollars Yet if these restrictions (unique to Australia) had not existed and were proposed today, they’d be laughed out of court.

The logic of all this takes us to a position where the majority of Australians are potentially ineligible to run for Parliament (dual citizens, anyone who has a foreign-born parent, anyone with a government job, potentially anyone receiving a pension, anyone who has business dealings with the government). How anyone can see this as other than a major problem for a democracy is beyond me.

Worse still, these absurd rules do nothing to protect us from actual corruption. Political parties can take money from foreign companies which may be acting on behalf of forigen governments. They can sell assets on the cheap and then get cushy jobs in banks. They can even be paid by lobby groups while in office then go to work for those very same groups.

The one group who can’t really be blamed for this are the framers of the Constitution. In 1901, when virtually all Australians were British subjects, and when an “office of profit under the Crown” was a rarity, they could scarcely have foreseen the mess that would ensue a century later when their words were applied to a totally different world.

61 thoughts on “Here’s a fine mess

  1. The Frydenberg case highlights the absurdity. There are regions of eastern and central Europe that changed countries four or five times during the 20th century, according to who conquered whom and what the settlement was reached after the world wars. And there are countries that retrospectively awarded citizenship from previously excluded present and former residents whose family had been living here for centuries (such as Jews) to right past wrongs.

    I agree with Turnbull that an audit of citizenship is not practical. What are candidates supposed to do, research their genealogy on back to the Roman empire and hire lawyers who are experts on the citizenry laws of every possible country that could be relevant to them?

  2. As for the undertaker Parry, he appears to have sat shtum in the hope that the High Court decision would break the way of people like him, an then he wouldn’t have to say anything to anybody. He was not exactly Scott Ludlum-like, or even Barnaby Joyice-like in being forthcoming about his situation. There is a good argument that he should be made to be pay back his salary from the time the High Court was engaged until his resignation.

  3. @Smith
    “..research their genealogy on back to the Roman empire and hire lawyers who are experts on the citizenry laws of every possible country”

    That’s a bit over the top. Two or so generations back would do it for the vast majority, and if there are a tiny few who’d need to check out more than one country then they should do so if they are seeking an office of state here. Similar provisions should apply to other categories of office holder too, such as the state pollies, military, judiciary, governors…

  4. @JQ

    “The logic of all this takes us to a position where the majority of Australians are potentially ineligible to run for Parliament (dual citizens, anyone who has a foreign-born parent, anyone with a government job, potentially anyone receiving a pension, anyone who has business dealings with the government).”

    No. The logic is that if anyone wishes to run then they sort their situation out first.

  5. Sykes, who was the challenger in the 1992 dispute of the by-election result, was one of the independent candidates but the two candidates thrown out by 44i were the ALP and Liberal candidates, not independents. The ALP candidates was a serious contender in the by-election, it having previously been the safe seat of PM Bob Hawke, and was only defeated by less than 3% in the 1993 general election (no second by election was held because of the proximity of this election).

    Ruling a Greek citizen (the ALP candidate) and a Swiss citizen (the Liberal candidate) as disqualified under 44i is not just following the literal wording of the constitution, it is following the specifically xenophobic intent of 44i and would have been rule so in any case brought before the Court of Disputed Ruturns against any such citizens at any point in the history of the Commonwealth of Australia. The writers of the constitution specifically decided against excepting dual citizens who have naturalised from 44i. The High Court was actually lenient with its “all reasonable steps” test, excepting people who cannot renounce their foreign citizenship according to the laws of the foreign power granting them that citizenship from the ban.

    Since anybody can renounce their foreign citizenship (with the High court`s ruling that people unable to renounce their foreign citizenship being excepted from the ban),it only bans those who do not do due diligence.

    44i only applied to a much smaller fraction of the population for the first 49-86 (probably the latter, although the High Court did not rule out it having applied for longer in Sue v. Hill) years of the Commonwealth because it did not apply to Empire/Commonwealth citizens (at least those sharing the same Crown), who made up the vast majority of pre-WWII immigrants. It is only our changing immigration profile and the reclassification of Commonwealth nations as foreign powers probably by the separation of the crowns (from the UK in 1986 (the Australia Acts 1986), from Canada in 1982 (Pariation), etc.).

    I do think 44i should be removed by referendum, although weather that would pass is another question. However I do not think it should be removed by judicial creative interpretation.

    44vi is worse because it requires a significant proportion of the population to renounce their main or even only income to run for parliament. It should be reformed as well and is more likely to pass at a referendum, if properly worded. There were still quite a lot of people bared by 44iv in 1901 and aged and disability pensions were provided for in New South Wales in 1900 and for Commonwealth provision in section 51, although the eligible proportion of the population was much smaller.

  6. @Svante

    “Two or so generations back would do it”

    There is nothing in the High Court judgement to suggest that this pragmatic approach would cut the mustard.

  7. If the Italians even sort out their citizenship law, to the High Court`s satisfaction, in a way that means that anyone qualifying for citizenship by decent is a citizen, then there will likely be Australians who are disqualified because their maternal grandmother`s paternal great-grandfather migrated from Italy as a citizen in the 1860s. Unless the High Court rules a generation limit.

  8. @Smith

    “Two or so generations back” in regard to the 20th century period mentioned would be sufficient for the vast majority of cases. The small remainder may have to dig a bit deeper in their due diligence, but if they seek high office here why wouldn’t they?

    I take it “Back to the Roman empire” and experts on the citizenry laws of every country since is hyperbole.

  9. I’ve just heard ABC radio news report that Shorten now supports an audit. “It must be bipartisan, and the process must not undermine the High Court.”

    That followed a contrasting item with a soundbite of Turnbull in desperate sounding defence of Frydenberg pleading because… because.

  10. “If the first person to fall afoul of this interpretation had been a senior government minister, I have no doubt the Court would have decided differently.”

    The confidence you avow in this entirely unprovable hypothesis is surprising. As is the evident certainty advanced in the various bush lawyers’ posts.

    Not that it ain’t a yet another depressing, self-inflicted schemozzle. But surely (and with a few limited exceptions) most of us abandoned any expectation of parliamentarian compentence long ago.

    Then again, perhaps you, JQ, are a disappointed optimist whilst I’m merely an unsurprised pessimist.

  11. “Worse still, these absurd rules do nothing to protect us from actual corruption.”

    Are those rules are meant to. If not, what rules would protect us from such corruption? Should those rules then be set in the federal constitution?

  12. @Svante

    It was a bit hyperbolic, but the assumption that you only need to check back to grandparents is not supported by the High Court’s judgment. Some countries cut citizenship after x generations have left the country, where x varies by country, but for some countries there is no cut off.

  13. I read the judgment, and I don’t think it’s unreasonable (it was unanimous). The judges went through the history of the clause, which made clear that it was intended to be strict (various looser wordings were proposed and rejected). They considered and rejected tests that involved subjective considerations, pointing to the difficulty of ascertaining the state of mind of people and the incentive to be economical with the truth (and how would you ascertain Malcolm Roberts state of mind?). They explicitly say that only reasonable steps have to be taken – that a foreign country cannot limit an Australian right to stand by delay or refusal.

    Given people have at most four grandparents, that most countries do not grant citizenship by descent, that consular advice is usually readily available, that standing for parliament is not a spur of the moment decision, it really should not be hard to do this kind of homework. It’s already there on the form.

  14. @Smith

    Yes, but the effective word you’ve used is “some.” And even those few can clear the way to be eligible to run for office.

  15. From the perspective of Aborigines, the article in question in the constitution and its literal interpretation may be a good thing because there is an implied ray of hope for regaining some power and influence via the parliamentary system.

  16. @Svante

    You can clear the way only if you are aware of the possibility. People generally know about their parents, probably know about their grandparents, maybe know about some of their great grand parents. But beyond that, they are unlikely to know much if anything. But until and unless the HC says this is an issue going back say 2 or 3 generations, and beyond that it doesn’t matter, and they haven’t said it yet, then it does matter.

  17. And remember, citizenship isn’t the only disqualification. Labor is still trying to throw out an LNP member because he rented space to a post office.

  18. @Jandra

    “The confidence you avow in this entirely unprovable hypothesis is surprising.’

    This is a blog, not a scientific paper.

    “Are those rules are meant to. If not, what rules would protect us from such corruption? Should those rules then be set in the federal constitution?”

    Clearly, the “office of profit” provision is meant to catch old-style C19 corruption. A Commonwealth ICAC, statutory rather than constitutional would be a good idea.

  19. Those who have fallen foul of the dual citizenship restriction have been of white European heritage. I guess those advocating changing the constitution are equally comfortable with MPs who are brown or black with dual citizenship of say, Iraq, Afghanistan, Somalia, China, Russia, Syria, etc.
    And wasn’t Peter Dutton a little while back advocating that refugees/immigrants should be required to renounce all other citizenship as a matter of national security?

  20. The high court pointed out, with some justice verging on pique, that if J Random can discover that Bob Diomedes is a citizen of nepal then Bob can too. The unknowable citizenship problem turns out never to arise.

  21. @Smith


    Apparently they’d know they don’t know, which should be sufficient impetus to check. If they don’t know their origins back wherever what are the odds that anyone else then here or there would know about great grandparents or whatever beyond that? They still ought to do due diligence checks though. What countries bestow citizenship on descendants born elsewhere so many generations far removed? Can’t be too many, nor with adequate records, and initial checks would narrow those few down further.

  22. I do not care about the reverse onus of proof. The government has done this to Centrelink recipients!

    I don’t agree with john either that the Court of disputed returns are at fault. Surely would be politicians can read what they have to do

  23. @Collin Street

    “The unknowable citizenship problem turns out never to arise.”

    Really? I didn’t know how the HC would rule. I didn’t see anyone who predicted the actual outcome with any confidence at all.

    What you meant to say is, J Random can see that there is a question about eligibility. That’s because, as a first approximation, if you’re not 100 per cent indigenous, your eligilibity is questionable.

  24. This can be compared with the right to bear arms in the US constitution ie a right that needed regulatory support in one time is inappropriate in another time.

    For whatever reasons the writers of the constitution made it difficult to change the constitution with the consequence that we are controlled by the past.

  25. The problem arises because foreign countries grant citizenship to Australian citizens. Surely we can overcome this by legislating that when you nominate for election, you are deemed to renounce foreign citizenship.

  26. The High Court did not accept renunciation in the oath as part of naturalisation as being sufficient, so there is a reasonable chance that it would not accept such a law as being sufficient, due to 44i making the content of foreign citizenship relevant to running for Parliament.

  27. “Given people have at most four grandparents”

    That is not the case. I have more than that and we weren’t even trying to be difficult.

    One of my three Grandfathers had no history or background. The reason was, he was passing for white. All family members have found is records of one ship he served on before he was called up to fight in World War II. On the Australian side, not the Japanese.

  28. Arnold Schwarzenegger holds dual American citizenship (by naturalization) and Austrian, for which he petitioned the Austrian government specifically as it’s not a normal part of Austrian law. You can criticise several of his policy decisions as Governor of California, and aspects of his personal behaviour. But none of these criticisms relate to his dual citizenship. Question to Svante and others here: why should dual citizenship be a bar to elective office in Australia? It isn’t in most democracies. If voters think it matters, they have a remedy in the ballot box.

  29. I probably can’t think logically about this. I am enjoying the schadenfreude of it far too much. I am so pleased Barnaby Joyce has been caught out. I am only sorry he is not facing criminal charges and deportation to N.Z.

  30. I note the High Court and Justin Gleeson S,C in his submissions for Tony Windsor, refer to New Zealand criminal law as applying extra- territorily to Barnaby during the time of him being a Kiwi.

  31. @John Quiggin

    “I didn’t see anyone who predicted the actual outcome with any confidence at all.”

    I think that Turnbull himself offered an utterly confident assertion, to he great discredit. This man is a lawyer? Seriously? What state are our schools of law in? The wording of the constitution, and of the previous judgements is plain. Such problems are not unique to Australia; one only has to look to a certain failing States to see that. “Sad”.

    I think their honours behaved extremely well, given the provocation by our prime minister and their obligations to the Game of Mates . If they had folded under that pressure, they would have terminally discredited the judiciary in the eyes of the people.

    I am one of that despicable Australian public that hates politicians. Why would I not? If I wanted representation I would get better value from a Norwegian Blue. There is no way in hell I would support a referendum to fix this problem, simply because in my opinion anyone who enters politics should be disqualified with extreme prejudice. Perhaps it could be done by a trade-off. I would fix the Section 44 problem, in return for Federal ICAC; banning all political donations; banning dual office in any form; and a ten year exclusion from work in the private sector after political “service”. Nothing less.

    The political caste have made their beds. I have no sympathy.

  32. @James Wimberley
    The governator held office in a US state. What’s the position of Australian state and territory constitutions on dual citizenship in elected office? The position on dual citizenship varies across democracies as do numerous related and unrelated concerns. Voters’ effective democratic input elsewhere also significantly varies, including on constitutional change. They are not necessarily limited to irrelevance other than at a periodic ballot box. In that regard most of those democracies aren’t locked-in duopolies either. I think if we sifted through most democracies for some sort of a median or average general position to adopt on most things we quickly would have a very different country. Would you want that? If we are to do that then let’s begin with net migration and population.

  33. @James Wimberley

    James, at that wiki link the governator case is mentioned several times, and my related query on the position of Australian states is answered. However,

    Re: “Question to Svante and others here: why should dual citizenship be a bar to elective office in Australia? It isn’t in most democracies.”

    I now believe your situational appraisal of multiple citizenship bars to elected (and other) office in democracies globally is quite wrong. Count the many bars throughout the page at the above link, and count the ways.

    Keeping tabs on the current Australian situation is:

  34. IMO, if you’re an Australian citizen, you can be elected, anything else (in terms of parental or dual citizenship) should be irrelevant.

    What I think should be subject to more scrutiny is the likes of Michael Danby who seems to spend most of his time advocating for Israel rather than his local electorate.

  35. Simple fix.
    1. Candidate signs a stat dec stating that they denounce any foreign citizenship. Gives it to AEC.
    2. AEC lodges a list of said persons with the UN. (Pinned on a notice board perhaps)
    3. Foreign country X is then deemed to have been told.
    4. Candidate nominates for election.

    Job done.

  36. @David Allen

    It wouldn’t work at present, as witness Sam Dastyari. He spent $30k to ensure eligilbility.

    But, given the stupidity of the situation and the bloodymindedness that’s on display everywhere, we’ll have to resort to some fix of this kind, supported by legislation, and with a clear direction to the High Court to stop messing things up.

  37. If Frydenberg gets ruled to be disqualified, then that significantly increases the chances of a referendum because of the arbitrary retrospective nature in his case highlights the problems with foreign citizenship laws effecting eligibility for parliament into disrepute.

  38. @John Quiggin

    I believe the only way of giving the High court a “clear direction” on a Constitutional matter is via the use of section 128 of the Constitution. Ordinary legislation does not change the constitution and, given the Court ruled in Sykes that the renunciation associated with Australian naturalisation pre-1986 does not qualify as renouncing foreign citizenship, it is likely that an Australian legislative provision deeming candidates to have renounced their foreign citizenship would not suffice unless it was agree to by the foreign powers concerned.

  39. @Tom the first and best
    Parliament can’t change the constitution but it can pass legislation clarifying terms set out in the constitution.
    The cynicism, schadenfreude and bloody mindedness being displayed by most commenters here won’t help improve our current stock of politicians, our system of governance, or the state of our democracy in general. It’s like lounging in the saloon bar, complaining bitterly about the competence of the ship’s capitain and crew while we steam towards the icebergs. There seems to be an underlying fatalism and resignation present that could be more fatal to the institutions that support our way of life than any amount of ineptitude from our pollies.

  40. @Cameron Pidgeon

    The High Court can clarify what the Constitution means, when relevant cases come before it, and parliament can only make laws as the constitution allows. 44i is effectively granting foreign powers some say in whether or not people can run for the Australian Parliament and it is likely that that can only be changed by referendum.

  41. I expect Trump will announce all Australians to be US citizens and members of the 51st state of Greater America. (Or possibly Greater Again America. Their propaganda team hasn’t quite settled upon a name yet.) With Australian Federal Government abolished, the invasion shall proceed mostly unopposed. Before the avenging nation of Pan-Asia abolishes section 44, more than one million “Jobs Guarantee” Australians will be entombed in the foundations of the US Canada wall.

  42. “The cynicism, schadenfreude and bloody mindedness being displayed by most commenters here won’t help improve our current stock of politicians, our system of governance, or the state of our democracy in general. ” – Cameron Pidgeon.

    Actually it would if people acted on that and stopped voting for the two major party blocs, ALP and LNP.

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