Eligibility of MPs: Section 44(i) and the Australian Constitution

This discussion board post examines Section 44(i) of the Australian Constitution, which addresses the eligibility of individuals to be elected to the Australian Parliament, particularly concerning dual citizenship. The author argues that this section, which requires MPs to renounce foreign citizenship, creates a constitutional crisis and contradicts Australia's multicultural identity. The post provides a historical overview of the section, including its interpretation by the High Court and its application in various cases, such as Crittenden v. Anderson and Re Wood. The author highlights recent cases involving Senators Scott Ludlam and Larissa Waters, who resigned due to dual citizenship issues. The post critiques the current legal framework, suggesting it's outdated and unfair, and calls for reform to clarify the requirements for parliamentary eligibility. The author references various sources to support their arguments, including academic publications and news articles. The overall argument is that Section 44(i) should be amended to reflect Australia's multiculturalism and to prevent unnecessary disqualifications of qualified candidates.

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Institution of Law and Government
Blog Post
25-Mar-18
(Student Details: )

Institution of Law and Government
There have been a number of referrals in the recent history to the High Court which relate
to the eligibility of different MPs to be elected in the Federal Parliament of the nation. These
have made it clear that Australian Constitution requires the non-Australian citizenship to be
renounced before an individual could become a representative of the people, despite the fact that
the multicultural people are from the nation (Lim, 2017). This has even led to the different MPs
fearing on their position being next and that they too could have to bear the disadvantage
associated with section 44(i). I think it is time that this section is changed so that the
constitutional crisis which is currently being posed on the MPs can be eradicated.
There have been a number of cases where the eligibility of elected parliamentarians is
referred to the High Court. This is done on the basis of section 44(i) of the Australian
Constitution, which provides that a person under acknowledgement of allegiance, obedience or
adherence to foreign power, or where such a person is citizen/ subjected to/ entitled to rights or
privileges of foreign power, would be considered as incapable in being chosen as a senator or as
a House of Representative. Now, the High Court interprets this section as giving the meaning
that the people who hold dual citizens are not permitted to stand for election and the need of
fulfilling certain steps in order to renounce the citizenship of other country. I find that the
interpretation of this section is very complex. There is a preliminary awkwardness where the
Australian constitution does not necessitate the MP to be Australian citizen. Though, there is a
requirement posed on MP through section 42 of the Australian constitution to swear an oath
allegiance to monarch (Saunders, 2010). Now this is a weird position. Even though you do not
have to be a citizen of Australia to be an MP, you need to give up dual citizenship of other
nation. The matter is further complicated where the statutory condition for being eligible for
election as being the citizen of Australia. In 1981, the committee of Senate recommended for the
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removal of this section and for a new provision to be brought it where Australian citizenship had
to be posed as the requirement and this was covered in the Constitutional Commission report of
1988 (Bennett, 2002). Yet, these changes were never implemented. This could have easily
clarified the position on a person required to an Australian nation, instead of going round and
round across a matter, and stating it indirectly. The present situation is that you cannot hold the
citizenship of another nation to be a MP, but do not have to be an Australian citizenship. Why
cannot we work on making the law clear, instead of leaving people guessing and prone to be
sacked as MP for the lack of fulfilment of this requirement?
This section has been used at a range of places and in various cases as well. For instance,
there was the case of Crittenden v Anderson (1950) 51 ALJ 171 where Henry William Crittenden
was an independent candidate petitioning for Gordon Anderson’s disqualification as he was a
Catholic. Fullagar J gave the ruling against Crittenden stating that where this premise given by
him was accepted, it would mean that the Catholics could not hold a seat in Australian
Parliament. The religious test factor in this case and the imposition of it on public office was
considered as violation of section 116 of the Australian Constitution. Fullagar J the ordered
Crittenden to pay Anderson’s costs by dismissing the case. Sarina v O'Connor (1946) Tabled in
the House of Representatives by the Clerk on '20 November 1946 saw similar ruling being given
where Ronald Grafton Sarina had been an unsuccessful candidate during the 1946 federal
elections. He made a petition to the High Court for declaring William O’Connor’s election as
void based on section 66(i) stating that a Roman Catholic would mean that there were
allegiances with the foreign power. Though, the petition was later on withdrawn.
There is also the case of Elaine Nile v Robert Wood [1987] HCA 63 made against the
elected NSW Senator, Robert Wood. This election was challenged by Elaine Nile on the grounds
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that the actions of Wood had been against the vessels of friendly nation which indicated
adherence, obedience and allegiance to foreign power. The reason for this was that Wood had
been fined $120 for paddling kayak in front of the USS Joseph Strauss at Sydney Harbor as this
was a US warship. Though, this petition had been dismissed on the basis of technical grounds by
the High Court. In context of section 44(i), a number of observations had been made, which
included the need of identifying foreign power and also showing the presence of such allegiance
(Holland, 2004). The matter of Re Wood [1988] HCA 22, (1988) 167 CLR 145 showed that
Wood was not an Australian citizen when he had been elected. This led to unanimous
determination that he was not entitled to be nominated for senator elections and that his election
had not been undertaken validly. The reason for this was that the Commonwealth Electoral Act,
1918 imposed the need for the candidate to be Australian citizen. The matter of dual citizenship
was denied by the High Court and Woof was disqualified from being a candidate of Senate
elections.
Some might raise an issue that this was all in history. However, this is far from the truth.
There have been a number of recent cases which show the problems faced by the MPs due to the
applicability of section 44(i), where they even fear that they might be next to be disqualified as
valid candidate for election. Let us take the example of two of the cases which took place in
2017 only. These are the cases of Scott Ludlam and that of Larissa Waters who were Australian
Greens Sentors, and who had resigned from MPs position. The resignation of Scott Ludlam came
owing to his failure in renouncing the dual citizenship. Scott Ludlam was both the citizen of
Australia and that of New Zealand (Strutt & Kagi, 2017). The resignation of Larissa Waters
came owing to her failure in renouncing the dual citizenship. Larissa Waters was both the citizen
of Australia and that of Canada (Belot, 2017). So, the dual citizenship poses a problem as the
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individual is not only the citizen of Australia, but also of a foreign nation. The basic theme of
Australian constitution is that we do not care if you are an Australian citizens or not, but as soon
as you hold the citizenship of a foreign nation, you cannot do well of Australia. But what if such
person was merely born in another nation, and has soul in Australia?
The need for change of this provision was even highlighted in 1997 with the motive
called The Castle. This matter has become a matter of interest amongst the general public due to
the number of individuals being affected by it, which included two of the Greens Senators, and
one each of Nationals Minster and One Nation. There were also names like Deputy Prime
Minister Barnaby Joyce and his deputy Fiona Nash (ABC News, 2017). Nash did not want to
give up her UK citizenship and it is but right. Why should one have to give up on their dual
citizenship? How does it prove that the person would work in interest of Australia only? Have
we not seen enough Bond movies to know the contrary? There is a need to pause and decide on
who can be made to hold the position of a politician in the nation on more practical basis (ABC
News, 2017).
There is again the grey area in section 44(i) with the term entitled (Gans, 2017). This
brings the question that whether the person needs to be an Australian citizen or whether they
need to have the position where they would be entitled to claim Australian citizenship at a later
stage. Let’s see the case of Joyce here. Till 1940s, the citizens of both UK and Australia were
deemed as subjects of UK. There is the case of New Zealand citizenship being given to a child
born in the nation without any registration (ABC News, 2017). So, what if a person got
citizenship by being born in another nation? They were born and brought up in Australia and are
true Australians. Is that not enough? Just having a foreign citizenship cannot be made to
disqualify them. This is being stereotypical and bringing out hypocrisy at time where Australia
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prides itself in being multicultural. What would renouncing the citizenship of another nation do
to a person more Australian?
All in all, it is undeniable that section 44(i) propagates absurd standards for a person
wanting to be an MP. The need for renouncing a citizenship of different nation goes against the
very theme of multicultural Australia, as it does not allow a person from another culture of
another region to hold their identity, if they want to hold parliamentary position in the nation.
Thus, there is a crucial need for changing this provision.
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References
ABC News. (2017). Who's who and what's what in Australia's constitutional citizenship mess.
Retrieved from: http://www.abc.net.au/news/2017-08-19/who-is-who-dual-citizenship-
scandal/8819510
Belot, H. (2017). Larissa Waters, deputy Greens leader, quits in latest citizenship bungle.
Retrieved from: http://www.abc.net.au/news/2017-07-18/larissa-waters-greens-resigns-
senate-over-citizenship-bungle/8720066
Bennett, B. (2002). Candidates, Members and the Constitution. Retrieved from:
http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Li
brary/pubs/rp/rp0102/02RP18
Crittenden v Anderson (1950) 51 ALJ 171
Crittenden v Anderson (1950) 51 ALJ 171
Doran, M. (2017). 'Entitled' to dual citizenship? The grey area in Section 44 of the constitution.
Retrieved from: http://www.abc.net.au/news/2017-07-28/citizenship-grey-area-in-
constitution-tripping-up-mps-senators/8754586
Elaine Nile v Robert Wood [1987] HCA 63
Elaine Nile v Robert Wood [1987] HCA 63
Gans, J. (2017). News: The High Court on dual citizen MPs. Retrieved from:
https://blogs.unimelb.edu.au/opinionsonhigh/2017/07/20/news-the-high-court-on-dual-
citizen-mps/
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Holland, I. (2004). Section 44 of the Constitution. Retrieved from:
http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Li
brary/Publications_Archive/archive/Section44
Lim, B. (2017). Australia's Constitution after Whitlam. Victoria: Cambridge University Press.
Sarina v O'Connor (1946) Tabled in the House of Representatives by the Clerk on '20
November 1946
Sarina v O'Connor (1946) Tabled in the House of Representatives by the Clerk on '20
November 1946
Saunders, C. (2010). The Constitution of Australia: a contextual analysis. Portland, OR:
Bloomsbury Publishing.
Strutt, J., & Kagi, J. (2017). Greens senator Scott Ludlam resigns over failure to renounce dual
citizenship. Retrieved from: http://www.abc.net.au/news/2017-07-14/senator-scott-
ludlam-resign-constitution-dual-citizenship/8708606
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