Though I've waited now a few weeks to write this essay, it is plain that the issue will go for some time. While most of the media attention is on what nine sub jure parliamentarians mean in terms of the Turnbull leadership, or the effect on citizen attitudes towards parliamentarians generally, or the outcome of by-elections caused by the dual citizenship problem, my interest lies in the deeper questions. Do we want to exclude all dual citizens from parliamentary service? Or should we extend that exclusion to the public services?
I was discussing the issue with a senior lawyer while I lay in my hospital bed. He described it as 'a right royal mess'. What sort of outcome do we want for the future? The Prime Minister has ordained that every MP and Senator will need to provide some kind of statutory declaration as to his or her standing in this matter, and that's necessary at this stage. But then?
Let's start with the essential pieces of law. The Constitution, at Part IV, says (s.42) that before taking your seat you need to 'make and subscribe … an oath or affirmation of allegiance' , while the following section says you can't be a member of both houses at the same time. Then comes Section 44 (i), which says that 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 of a foreign power' … shall be incapable of being chosen or sitting as a senator of a member of parliament'.
You might think that s.42 covers those who are dual citizens because in making an oath of allegiance you've made clear where your priority lies. But if you read s.44 carefully you'll see that you shouldn't have been chosen anyway - that is, you shouldn't have been a candidate in the first place. If you have done these things in defiance of the Constitution, then s.45 says your place will become vacant.
Section 46 says, further, that any person can sue, so that such a miscreant 'for every day on which he so sits, [will] be liable to pay the sum of one hundred pounds.' Someone has already begun such proceedings against aspiring candidate Barnaby Joyce. I'm not sure how the courts will determine the matter.
And while we're on the Constitution, section 44 did not apply at the time to British subjects, for the good reason that in 1901 all Australian citizens were British subjects, and quite a lot of the members of the first Parliament had been born in Britain. Indeed, the High Court in 1906 said that the notion of an Australian nationality distinct from British nationality was 'a novel idea' and dismissed it. Australians have been elected to the House of Commons, too, when they were British subjects.
Which brings me to the second piece of law, the Citizenship Act 1948, much amended, and now called the Australian Citizenship Act 2007. Our 1948 legislation followed Canada's pSSING a similar bill, and helped Australia in dealing with how refugees and migrants, arriving in large numbers, could become citizens of their new home. In 1988 the High Court ruled that even Britons would need to apply to be Australian citizens; that they were British subjects was no longer sufficient.
For a long time you could only be the citizen of a single country, but citizenship around the world has evolved too, and dual citizenships are now common. The late Aldo Giurgola, the designer of our Parliament House was a citizen of Italy, the USA and Australia, and saw that as the way it ought to be. Mind you, he only designed the building - he didn't seek to sit in it as a parliamentarian. Some countries grant citizenship to those who have left, and to their children, and so on, apparently indefinitely. How do you renounce citizenship? That varies from country to country too, and is, one supposes, relatively uncommon. Anecdotally, and from the Internet, renouncing citizenship can be difficult.
Faced with all of this, the High Court unanimously took a straightforward interpretation of the Constitution. We can't solve this mess for you, they said. You have to sort it out yourself. And that is not at all easy. My guess is that several dozen, possibly small hundreds, of former MPs and Senators have held their places quite illegally. None of the recent discovery is really new, however, for in 1988, 1992 and 1999 the Court overturned election in three cases where those in question were found to be dual citizens. The current ruling means that dual citizens must have taken 'all steps that are reasonably required' to renounce their other citizenship. And that can be difficult to do, for not every country allows to you to do so, or makes such renunciation easy. What is 'reasonable', and to whom?
So there will be a short-term band-aid fix, and no one presently much wants to go further. But there is need to do so, in my opinion. It is surely worrying that another country can apparently determine whether or not one of our citizens is eligible to stand for our national parliament. I had hoped that the High Court might say something to this effect. And it did so, in what seems to me a stilted way:
A person who, at the time that he or she nominates for election, retains the status of subject or citizen of a foreign power will be disqualified by reason of s 44(i), except where the operation of the foreign law is contrary to the constitutional imperative that an Australian citizen not be irremediably prevented by foreign law from participation in representative government. Where it can be demonstrated that the person has taken all steps that are reasonably required by the foreign law to renounce his or her citizenship and within his or her power, the constitutional imperative is engaged.
What is the 'constitutional imperative'? My reading, for what it is worth, is that no other country can have the right to dictate whether or not an Australian citizen can stand for our national parliament. I take it to be an assumption, a sort of basic law: Australians decide their own rules, because we are an independent nation-state. Ergo, the fact that a Greek Australian who has never sought to be a Greek in Greece or to hold a Greek passport or in any other way to act as a Greek citizen, should not prevent such a citizen's offering himself or herself as a candidate in Australian federal elections.