Constitutional Law Essay: Analysis of Section 44(i) and Reform

This essay provides a comprehensive analysis of Section 44(i) of the Australian Constitution, focusing on the eligibility criteria for parliamentary members, particularly concerning dual citizenship. It delves into the historical context, relevant case law, and the High Court's interpretations of the section. The essay examines instances where Section 44(i) has been invoked, including the cases of Crittenden v Anderson, Sarina v O'Connor, and Elaine Nile v Robert Wood, as well as more recent cases involving dual citizenship. The author argues for the need for reform of Section 44(i), highlighting the complexities and controversies arising from its wording and its impact on modern multiculturalism, and the increasing burden it places on the High Court. The essay concludes by emphasizing the need for either modification or repeal of Section 44(i) to reflect contemporary societal values and prevent future political crises.

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Introduction
The Constitution of Australia is the main law through which the government of
Commonwealth operates1. It consists of a number of documents and also includes the
relationship with the Australian States. Chapter 1 of the Australian Constitution sets up the
legislative branch of the government in nation, the Australian Parliament, where three parts
constitute it2. Under this chapter, Part IV deals with both Houses of the Australian Parliament
and covers the provisions regarding the voting eligibility and the election to parliament, the
parliamentary rules, the parliamentary allowances and the related matters3.
While sitting as the Court of Dispute Returns, the High Court of Australia was referred a
number of issues, in the recent time, with regards to the elected parliamentarians’ eligibility
which is covered under section 44(i) of the Constitution of Australia4. In the following parts, an
attempt has been made to such matters which have been referred to the Australian High Court
and the law which surrounds this section. Further, through this analysis, the need for reforming
this section has also been analysed.
Section 44(i)
Section 44 of the Constitution of the nation covers the grounds on which a person who
can possible be a candidate for election can be disqualified from the election to the Australian
Parliament5. The same is raised for consideration by the High Court which sits in the capacity as
1 Matthew Groves, Law and Government in Australia (Annandale, NSW: The Federation Press)
2 Australian Constitution, ch1
3 Australian Constitution, ptIV
4 Brendan Lim, Australia's Constitution after Whitlam (Cambridge University Press, 2017)
5 Australian Constitution, s44

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the “Court of Disputed Returns”. Section 44(i) provides that any individual who is under the
acknowledgement of adherence, allegiance or obedience to the foreign power, or is a citizen/ is
entitled to rights/ is subject to/ is entitled to privileges of a citizen/ subject of a foreign power,
would be deemed as incapable of sitting or be chosen as a member of the House of
Representatives or a senator6.
The High Court of Australia generally interprets section 44(i) to mean that the individuals
with dual citizenship would not be allowed to stand for election, along with the requirement of
undertaking the requisite steps for renouncing the citizenship of the other nation. The
interpretation of this section is quite difficult. This is due to the preliminary awkwardness
whereby the Australian Constitution does not require a Parliament member to be the citizen of
the nation; even though section 42 of the Australian Constitution puts forward a requirement
upon its members to swear an affirmation or an oath of allegiance to the monarch7. To
complicate the matter again, a statutory condition for being eligible for election is the Australian
citizenship. The Senate’s committee, back in 1981 had recommended that this section should be
removed and a new provision should be inserted whereby the requirement of Australian
citizenship is inserted as per the report of 1988 of Constitutional Commission8. The House of
Representatives’ committee, back in 1997 predicted that there had been certain difficulties and
there were three key changes to the Australian Constitution that were recommended and
including in this was section 44(i)9.
6 Australian Constitution, s44(i)
7 Australian Constitution, s42
8 Bob Bennett, Candidates, Members and the Constitution (28 May 2002)
<http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/
rp0102/02RP18>
9 Kevin Andrews, Surely it is now time to abolish the archaic traps of dual citizenship (03 August 2017)
<http://www.theaustralian.com.au/opinion/surely-it-is-now-time-to-abolish-the-archaic-traps-of-dual-citizenship/
news-story/8756a889e246a42909711d9a18216bad>

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There have been a number of instances where this section has been used. For instance,
this was used in the case of Crittenden v Anderson10. In this case, an independent candidate, i.e.,
Henry William Crittenden had petitioned for the disqualification of Gordon Anderson on the
basis of Catholicism. The ruling was given against Crittenden by Justice Fullagar and he stated
that in case the premise set by him was sustained, it would result in any Catholic being prevented
from holding a seat in the Parliament of Australia. The factor which led to the decision being
made was the exclusion of Catholics from the Australian Parliament would be seen as an
imposition of a “religious test” for the public office which would be deemed as a contradiction to
section 116. It was also stated by Justice Fullagar that as a result of this petition, an analysis was
invited with regards to the relationship amidst the state and church, over a long period of time.
Dismissing the case, the High Court ordered Crittenden to pay the costs of Anderson. A similar
ruling was earlier given in the matter of Sarina v O'Connor (1946) 11. In this matter, the
unsuccessful candidate Ronald Grafton Sarina, for West Sydney, after the federal elections of
1946 made a petition in the High Court for declaring the election of William O’Connor as being
void pursuant to section 66(i) on the basis that O’Connor, as a Roman Catholic was under the
allegiance of a foreign power. In Dec 1946, it was stated by the attorney of Sarina that they
wanted to withdraw the petition and the same was granted12.
Elaine Nile v Robert Wood13 was again a case in which Robert Wood had been elected as
the NSW Senator for 1987. Elaine Nile of the Call to Australia party challenged the election of
10 (1950) 51 ALJ 171
11 Tabled in the House of Representatives by the Clerk on '20 November 1946.
12 Parliament of Australia, Dual .Citizenship, Foreign Allegiance and s.44(i) of the Australian Constitution (2017)
<https://www.google.co.in/url?
sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=0ahUKEwjHt824iszWAhXK6Y8KHRIbDRc
QFgglMAA&url=http%3A%2F%2Fwww.aph.gov.au%2Fbinaries%2Flibrary%2Fpubs%2Fbp
%2F1992%2F92bp29.pdf&usg=AOvVaw0wMfCXyse-pRg7XXOf1F4e>
13 [1987] HCA 63

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Wood on the grounds that "His actions against the vessels of a friendly nation indicate
allegiance, obedience or adherence to a foreign power". This was due to t eh fact that Wood had
been imposed upon a fine to the value of $120 as he had paddled a kayak in front of USS Joseph
Strauss which was a warship of US, at Sydney Harbor. The petition was dismissed by High
Court in Dec 1987 on the basis of technical grounds. A number of observations were made with
regards to section 44(i) in this case and this included a requirement of identifying the foreign
power, along with acknowledging the allegiance14.
Later on, in Re Wood15, it came to be known that Wood had not been a citizen of the
nation when he was elected and it was determined unanimously that due to this, he was entitled
to be nominated for the election as a senator and due to this, he had not been elected in a valid
manner. This was due to the requirement of a candidate being Australian citizen as per the
Commonwealth Electoral Act, 191816. The question of dual citizenship was expressly declined
by the High Court and was disqualified as a candidate from the election.
In 2017 also, a number of cases have been raised for this section being possibly breached.
The two leading examples in this regard are that of the Australian Greens Senators, i.e., Scott
Ludlam and Larissa Waters, who resigned from the members of Parliament. Scott Ludlam
resigned due to his failure in renouncing the dual citizenship as he was also a citizen of New
Zealand17. Similarly, Larissa Waters failed in renouncing her Canadian Citizenship, where she
14 Ian Holland, Section 44 of the Constitution (March 2004)
<http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/
Publications_Archive/archive/Section44>
15 [1988] HCA 22, (1988) 167 CLR 145
16 Commonwealth Electoral Act, 1918 (Cth)
17 Jessica Strutt and Jacob Kagi, Greens senator Scott Ludlam resigns over failure to renounce dual citizenship (16
August 2017) <http://www.abc.net.au/news/2017-07-14/senator-scott-ludlam-resign-constitution-dual-citizenship/
8708606>

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was also a dual citizenship holder18. And some have referred the matter to the High Court of
Australia, through the Court of Disputed Returns and this includes Senator Matthew Canavan19
and Nick Xenophon20.
Need for Change
There has been a lot of interest and excitement with regards to the Australian Constitution
since the release of movie The Castle back in 1997. Earlier it was the two Greens senators,
followed by One Nation and a Nationals Minster joining this malice. To add to the name of this
list was Deputy Prime Minister Barnaby Joyce and the latest one was that of Joyce’s deputy,
Fiona Nash21, who faced conflict owing to section 44(i) as she held a dual citizenship of
Australia and UK. As this apparently extraordinary drama surrounding citizenship reaches
through the federal parliament, one needs to halt and take into consideration regarding the
manner in which the High Court could act for figuring out who can be a politician and who
cannot be one22.
The grey area under section 44(i) is the term “entitled”23. The question which is raised
due to this word is whether the individual has to be a citizen of the nation, or whether they have
to would they just be entitled to claim the citizenship at a future time period. If the case of Joyce
18 Henry Belot, Larissa Waters, deputy Greens leader, quits in latest citizenship bungle (16 August 2017)
<http://www.abc.net.au/news/2017-07-18/larissa-waters-greens-resigns-senate-over-citizenship-bungle/8720066>
19 Henry Belot, Matt Canavan resigns from Malcolm Turnbull's ministry over Italian citizenship (25 July 2017)
<http://www.abc.net.au/news/2017-07-25/matt-canavan-citizenship-crisis-resigns-from-cabinet/8742702>
20 Melissa Davey, Nick Xenophon will go to high court after finding out he's a British overseas citizen (19 August
2017) <https://www.theguardian.com/australia-news/2017/aug/19/nick-xenophon-will-go-to-high-court-after-
finding-out-he-holds-dual-citizenship>
21 ABC News, Who's who and what's what in Australia's constitutional citizenship mess (21 September 2017)
<http://www.abc.net.au/news/2017-08-19/who-is-who-dual-citizenship-scandal/8819510>
22 Matthew Doran, 'Entitled' to dual citizenship? The grey area in Section 44 of the constitution (17 August 2017)
<http://www.abc.net.au/news/2017-07-28/citizenship-grey-area-in-constitution-tripping-up-mps-senators/8754586>
23 Jeremy Gans, News: The High Court on dual citizen MPs (20 July 2017)
<https://blogs.unimelb.edu.au/opinionsonhigh/2017/07/20/news-the-high-court-on-dual-citizen-mps/>

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is considered, he had citizenship of both Australia and New Zealand. Now, till 1940s, both the
nations were considered the subjects of UK. New Zealand laws given an automatic citizenship to
such child who is born in the nation and they do not have to register or activate the same. This is
where an uncertainty is born for Joyce due to the question of whether acquiescence be amounted
to citizenship. Also, if a person is entitled to foreign citizenship, would they be disqualified
under the Australian Constitution? The case laws are evidence enough that there is a need to act
on this issue24.
This sounds stereotyping but the individuals who drafted the constitution of Australia
were men who were deemed as the subjects of UK and even they would have faced difficulty in
interpreting these sections, had these been required to be adopted at that time. It is true that the
High Court of Australia can take a strict interpretation of this section and state that the eligibility
to foreign citizenship would disqualify an individual; however, this would not be enough to halt
the potential members of parliament from making the attempts for liberating themselves from a
possible future claim on citizenship25. This again raises the question that whether renouncing the
inherited citizenship is enough or is there a need to surrender the possible entitlement to such
citizenship in the future. Hence, this would raise a question for the High Court to decide upon the
exact vibe of the Constitution and what that means to be26.
In essence, no one is entitled to be elected to the Australian Parliament as a result of
section 44(i). Under the laws of New Zealand, the citizens of Australia are not required to get a
visa to work, live or study in New Zealand. Hence, every Australian person is entitled to
privileges and rights of New Zealand subjects; though, these are not the citizen rights, for
24 At 22
25 Graham Reilly, Section 44: Changing The Constitution To Reflect Modern Australia (21 August 2017)
<https://pursuit.unimelb.edu.au/articles/section-44-changing-the-constitution-to-reflect-modern-australia>
26 At 22

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instance that of voting. New Zealand undisputedly is a foreign power. So, as every Australian
citizen can be a citizen of New Zealand, everyone is disqualified from being a member of
Australian Parliament, and not just Joyce27.
All this points to one thing, section 44(i) wreaks a political havoc, which not only affects
the minor parties, but also the major ones, which goes all the way up to Deputy PM. This
constitutional crisis does not show any signs of abating and this begs the need of amending the
Australian Constitution so that the modern multiculturalism is reflected under it. There have been
several attempts in the past, along with several demands to either amend this section or to repeal
it, but none of these have been adopted as yet. This has just led to the increased burden on the
High Court of Australia to act as the Court of Disputed Returns. The problem is particularly
because of the high number of cases which are being raised based on the dual citizenship
problem, presented due to section 44(i). One cannot ignore that migrants have created this nation
and these migrants usually hold dual citizenship. To deny them from being members and
senators of Parliament is not fair as many of these citizens are not even aware of their foreign
citizenship.
Conclusion
To conclude the discussion carried on in the previous parts, it becomes very clear that
section 44(i) does present controversies due to the wordings of this section. This section has the
capacity of disqualifying every citizen of the nation as they are “entitled” to the citizenship of a
foreign land. Even though the High Court plays a crucial role in upholding the justness and fair
27 Robert Angyal, Section 44 Of The Constitution Means NOBODY Is Eligible To Be Elected To Parliament (16
August 2017) <http://www.huffingtonpost.com.au/robert-angyal/section-44-of-the-constitution-means-nobody-is-
eligible-to-be-el_a_23078667/>

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applicability of this section, the rising number of cases being presented before it, for it acting in
the capacity of the Court of Disputed Returns has raised the need for either a modification of this
section, or repealing section 44(i). When it has been clearly identified that this section continues
to be in the centre of political storms, it becomes evidence of the need of bringing change to it,
instead of continuing to put burden over the Australian High Court.

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Bibliography
Articles/ Books/ Journals
Groves M, Law and Government in Australia (Annandale, NSW: The Federation Press)
Lim B, Australia's Constitution after Whitlam (Cambridge University Press, 2017)
Cases
Crittenden v Anderson (1950) 51 ALJ 171
Elaine Nile v Robert Wood [1987] HCA 63
Re Wood [1988] HCA 22, (1988) 167 CLR 145
Sarina v O'Connor (1946)
Legislations
Australian Constitution (Cth)
Commonwealth Electoral Act, 1918 (Cth)
Others
ABC News, Who's who and what's what in Australia's constitutional citizenship mess (21
September 2017) <http://www.abc.net.au/news/2017-08-19/who-is-who-dual-citizenship-
scandal/8819510>

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Andrews K Surely it is now time to abolish the archaic traps of dual citizenship (03 August
2017) <http://www.theaustralian.com.au/opinion/surely-it-is-now-time-to-abolish-the-archaic-
traps-of-dual-citizenship/news-story/8756a889e246a42909711d9a18216bad>
Angyal R, Section 44 Of The Constitution Means NOBODY Is Eligible To Be Elected To
Parliament (16 August 2017) <http://www.huffingtonpost.com.au/robert-angyal/section-44-of-
the-constitution-means-nobody-is-eligible-to-be-el_a_23078667/>
Belot H, Larissa Waters, deputy Greens leader, quits in latest citizenship bungle (16 August
2017) <http://www.abc.net.au/news/2017-07-18/larissa-waters-greens-resigns-senate-over-
citizenship-bungle/8720066>
Belot H, Matt Canavan resigns from Malcolm Turnbull's ministry over Italian citizenship (25
July 2017) <http://www.abc.net.au/news/2017-07-25/matt-canavan-citizenship-crisis-resigns-
from-cabinet/8742702>
Bennett B, Candidates, Members and the Constitution (28 May 2002)
<http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/
Parliamentary_Library/pubs/rp/rp0102/02RP18>
Davey M, Nick Xenophon will go to high court after finding out he's a British overseas citizen
(19 August 2017) <https://www.theguardian.com/australia-news/2017/aug/19/nick-xenophon-
will-go-to-high-court-after-finding-out-he-holds-dual-citizenship>
Doran M, 'Entitled' to dual citizenship? The grey area in Section 44 of the constitution (17
August 2017) <http://www.abc.net.au/news/2017-07-28/citizenship-grey-area-in-constitution-
tripping-up-mps-senators/8754586>

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Gans J, News: The High Court on dual citizen MPs (20 July 2017)
<https://blogs.unimelb.edu.au/opinionsonhigh/2017/07/20/news-the-high-court-on-dual-citizen-
mps/>
Holland I, Section 44 of the Constitution (March 2004)
<http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/
Parliamentary_Library/Publications_Archive/archive/Section44>
Parliament of Australia, Dual .Citizenship, Foreign Allegiance and s.44(i) of the Australian
Constitution (2017) <https://www.google.co.in/url?
sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=0ahUKEwjHt824iszWAh
XK6Y8KHRIbDRcQFgglMAA&url=http%3A%2F%2Fwww.aph.gov.au%2Fbinaries
%2Flibrary%2Fpubs%2Fbp%2F1992%2F92bp29.pdf&usg=AOvVaw0wMfCXyse-
pRg7XXOf1F4e>
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<https://pursuit.unimelb.edu.au/articles/section-44-changing-the-constitution-to-reflect-modern-
australia>
Strutt J, and Kagi J, Greens senator Scott Ludlam resigns over failure to renounce dual
citizenship (16 August 2017) <http://www.abc.net.au/news/2017-07-14/senator-scott-ludlam-
resign-constitution-dual-citizenship/8708606>