Constitution's wide net catches even MPs who had no idea they're foreign citizens

Cabinet minister Matt Canavan has become the latest federal MP to be tripped up by the Australian Constitution’s ban on dual citizens serving in parliament. On Tuesday, the Nationals senator resigned from cabinet, pending an investigation into whether he holds Italian citizenship.

Canavan’s case, and those of the two Greens senators – Scott Ludlam and Larissa Waters, who resigned from parliament entirely over their dual citizenship earlier this month - have provoked calls for changes to the Constitution.

Section 44(i) of the Constitution states “any person who 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” is ineligible to stand for, or sit in, federal parliament.

At the heart of the current controversy is that the senators were either ignorant of their second nationality or believed themselves to have lost it. For some this amounted to carelessness – even “incredible sloppiness”, in Prime Minister Malcolm Turnbull’s words – by them or their party.

The Australian Electoral Commission (AEC) advises potential parliamentary candidates with a foreign nationality that they will be:

… disqualified from election to parliament if they do not take “all reasonable steps” to renounce their other citizenship before nomination.

The AEC also says:

Taking all reasonable steps necessitates the use of renunciation procedures of the other country where such procedures are available.

But what about cases where someone was not in a position to take “reasonable steps”, because their second citizenship was unknown to them?

What the High Court has previously found

The AEC’s advice refers to a 1992 case in which the High Court closely examined Section 44(i) for the first time.

The case concerned the eligibility of candidates in the 1992 by-election for the lower house seat of Wills. It included a meticulous examination of what it meant for an Australian to hold a foreign nationality, and how a nationality might be discharged.

The court recognised that Liberal candidate John Delacretaz and Labor’s Bill Kardamitsis, both naturalised Australians, had lived in and contributed to Australia for many years, and that neither had taken any advantage of their other citizenship over that time.

Nevertheless, the court’s majority concluded that any candidate who had not actively renounced their foreign citizenship was constitutionally disqualified, regardless of whether there had been any benefit from, reliance upon, or even acknowledgement of that citizenship.

The mere entitlement to a foreign nationality was enough. This interpretation has applied ever since.

But two dissenting judgments offered an alternative perspective. This may provide guidance in thinking about the meaning of the Constitution’s provision today, and even an alternative to the difficult task of constitutional change.

Although certain facts differed from the current examples – the candidates were not native-born Australians, and the naturalisation process at the relevant time included renunciation of all other allegiances – the reasoning still applies.

Two principal questions were considered:

• Did the disqualification rule really apply in the absence of active identification with, or allegiance to, a foreign country?

• And should the interpretation of the Constitution be subject to other countries’ laws?

In justice William Deane’s view, the whole of Section 44(i) should apply:

… only to cases where the relevant status, rights or privileges [of citizenship] have been sought, accepted, asserted or acquiesced in by the person concerned.

For an Australian-born citizen, Deane concluded, there should be no disqualification unless there was such a “relationship with the foreign power”. For a naturalised citizen, doing all that “can reasonably be expected to extinguish any former relationship with a foreign country to the extent that it involves the status, rights or privileges” of citizenship would be sufficient to overcome disqualification.

Both justices also recognised that each country has the sovereign power to determine its own citizenship law. But, in justice Mary Gaudron’s view, “every consideration of public policy and common sense tells against the automatic recognition and application of foreign law as the sole determinant” of the constitutional rights of Australian citizens.

Deane posed a hypothetical. What if a foreign power decided to:

… disqualify the whole of the Australian parliament by unilaterally conferring upon all of its members the rights and privileges of a citizen of that nation?

In other words, what are the limits in treating unintended or unwanted foreign citizenship as genuine foreign allegiance?

Many countries (Ireland, for example) automatically confer citizenship on the children of their citizens. Many Australians will not be aware they have received such a “gift”.

If, as has been said, Section 44(i) was designed so MPs “did not have a split allegiance and were not, as far as possible, subject to any improper influence from foreign governments”, surely citizenship of which one is ignorant cannot create such conflicts?

What now?

Responding to Canavan’s troubles, Attorney-General George Brandis suggested Canavan was not disqualified because his Italian citizenship was acquired “without [his] knowledge or consent”.

This may not be correct under current constitutional law; the government will refer Canavan’s case to the High Court. But it captures a perspective that is well worth consideration.