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Who should we elect to represent us?

By David Leyonhjelm - posted Tuesday, 21 November 2017


When the authors of the Australian Constitution were writing the bit about dual citizenship, I'm pretty sure they weren't thinking about the eligibility of people whose parents were born in Great Britain, Canada or New Zealand, or whose grandparents were born in Ireland. In the late nineteenth century these countries, like Australia, were part of the British Empire.

I am also fairly sure they didn't intend to prevent someone from sitting in the federal parliament because of an accident of birth, such as their parents being overseas at the time of their birth, or because they were eligible for foreign citizenship due to some historic legal quirk in the foreign country about which they had no knowledge.

What they had in mind was to avoid a situation where someone in the federal parliament owed allegiance to a country with which Australia had a significant conflict. You can imagine them contemplating the possibility of being at war with Russia or Germany, for example, and wanting to ensure there was nobody with Russian or German citizenship sitting in parliament and having to make critical decisions about the war.

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However, rather than confirm that S44(1) of our Constitution had such a practical meaning, our High Court has instead decided that it must be read literally. That is, nobody can sit in the federal parliament while being eligible for citizenship of another country, irrespective of how that eligibility was acquired or whether it is even known.

This has led to the absurd situation where Members and Senators are now scrambling to establish whether they are disqualified based on vaguely known family history and the laws of other countries, without so much as a whiff of dual allegiance.

Some of the cases are truly bizarre. For example, Senator Stephen Parry's ineligibility was due to his father's UK citizenship. However, if it had been his mother who had migrated from England, or if his parents had never married, there would be no issue regarding eligibility.

Clearly the High Court has delivered an unwise interpretation. However, there is no way to appeal its decisions; ironically, it might help if we could appeal to the Privy Council in London. So it is up to Parliament and the people to fix it. What we should do is amend the Constitution to restore its original meaning.

This is not a matter of politicians being unable to get their house in order. The problem arises at the nomination stage. At the 2016 election, 1,625 candidates nominated. According to the High Court, every one of them should investigate their family tree up to grandparent level, inquire whether they are eligible for citizenship of another country, and renounce it if the answer is yes.

A candidate whose grandparents were born in Nepal, Italy, Greece and Albania but were also citizens of several other countries, and whose parents were born in Scotland and New Zealand but inherited the citizenships of their parents, would potentially have to investigate and potentially renounce a dozen or so citizenships prior to nomination. And if they miss one, the High Court says that's too bad; being unaware makes no difference.

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Given only 226 candidates can be elected, this has profound implications for the diversity of our democracy. Inevitably, potential candidates with multi-ethnic backgrounds will decide it is simply too hard.

A common complaint about politicians is that too many are beige. That is, they have limited experience outside the political bubble and are too blandly similar. This will only get worse if it is unreasonably difficult for those with multi-ethnic backgrounds to participate.

While existing politicians obviously need to comply with the current Constitution as the High Court has interpreted it, more important is the need for a conversation about how it should be changed. Should we allow dual citizens from certain countries, such as New Zealanders? Should genuine dual allegiance be the only grounds for ineligibility? How can we ensure we elect a parliament that reflects both our essential Australian values and our diverse origins? These are issues worthy of a referendum.

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This article was first published in the Australian Financial Review.



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About the Author

David Leyonhjelm is the Liberal Democrat Senator for NSW.

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