Two Greens Senators, Scott Ludlam and Larissa Waters, recently quit the Senate after discovering that they held dual citizenship: Ludlam is, apparently, a citizen of New Zealand, and Waters is, apparently, a citizen of Canada. You wouldn’t have guessed: both have normal Aussie accents, and both have worked tirelessly in support of Australia’s interests.
The sudden departure of Ludlum and Waters from the Senate focussed renewed attention on section 44 of the Commonwealth Constitution. Section 44 provides:
“44. Any person who:
(i) 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 or a citizen of a foreign power …
shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.”
Senator Ludlam said “About a week or so ago it was brought to my attention that I hold dual-citizenship nationality of Australia and New Zealand”. Given that section 44 is the relevant provision, it is ironic that Scott Ludlam, who is now 47 years old, has lived in Australia for 44 years. He came here when he was a 3-year old.
A few days later, Senator Larissa Waters also announced she was leaving the Senate, as she had been born in Canada and came to Australia when she was 11 months old.
According to news reports on 20 July, Senator Richard di Natale is now trying to find papers showing that he has renounced any rights to Italian citizenship. It is significant to notice that, if your citizenship of another country is a thing of the distant past, digging out documents to show that you no longer adhere to that other country could be challenging. Given that a lot of people come to Australia as young children born in another country, or are born here to parents who came here from another country, the challenge is a large one. And add to this that you would have to find out whether the law of the country where you were born, or where your parents came from, recognised you as a citizen in the particular circumstances.
In a multi-cultural country like Australia, it looks a bit crazy.
When a person is elected to the Commonwealth Parliament, they take an Oath of Allegiance in the following terms:
“I [name] do swear that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second, Her heirs and successors according to law, So help me God”
This is a little less comprehensive than the Governor-General’s Oath of Office:
I, [name], do swear that I will well and truly serve Her Majesty Queen Elizabeth the Second, Her heirs and successors according to law, in the office of Governor-General of the Commonwealth of Australia, and I will do right to all manner of people after the laws and usages of the Commonwealth of Australia, without fear or favour, affection or ill will. So help me God!
It is mildly surprising that members of the Parliament have to swear allegiance to a person who would be disqualified from being a member of the Australian Parliament. Queen Elizabeth the Second is a British national, she is not a citizen of Australia, but she is our Head of State. It is also disconcerting that the Governor-General is not constrained in the way members of parliament are. the governor-General might or might not be a citizen of Australia, and traditionally was a British, but not an Australian, national.
But putting those minor quibbles to one side, no-one has ever suggested that Ludlam, Waters (or any other Greens member) has been untrue to their oath of allegiance. Given that their connection to New Zealand or Canada respectively is so remote, and so slight, that is not surprising. Whatever your views about Greens policies, Australian democracy is the weaker for losing Senators Ludlam and Waters. We should consider very carefully whether section 44(i) is too wide and indiscriminate in its reach.
And here is Ian Holland’s take on the same question, published on 20July 2017 in the Brisbane Times
There is a bigger question Mr Burnside. If s44(i) is held in its entirety then are both alleged Senators in fact impersonating a Commonwealth officer? A two year sentance imposed under the Crimes Act would perk the ears of the phantom Citizenship Loss Board and could both former Senators be sent to Christmas Island awaiting deportation? I am NZ born and dread leaving Australian shores thinking a law change will see me detained by the Farce.
Interesting point. It highlights the absurdity of the provision
Section 6 of the Commonwealth of Australia Constitution Act (9 July 1900) provides:
6. Definitions
The Commonwealth shall mean the Commonwealth of Australia as established under this Act.
The States shall mean such of the colonies of New South Wales, New Zealand, Queensland, Tasmania, Victoria, Western
Australia, and South Australia, including the northern territory of South Australia, as for the time being are parts of
the Commonwealth, and such colonies or territories as may be admitted into or established by the Commonwealth as
States; and each of such parts of the Commonwealth shall be called a State.
Section 9 of the Act contains the Constitution as we know it.
New Zealand isn’t a State, but I can’t remember how it got out…
And you’re right about the 7th star on the flag.
Thank you for your thoughts on this. Concise and profound as always. Personally I’m ambivalent about whether it should be law or not, but so long as it IS the law, I question whether your appeal for diminished culpability, based on how long they’ve been here, is relevant.
Surely any reasonable person going into an election is aware of this law and is aware of at least the possibility of their own status being questioned. And if they can’t find historical documentation, surely they can approach the relevant Embassy, ascertain their status and, if necessary, renounce it.
I understand, but if you came to Australia as an infant or young child, and you grew up in Australia, it seems that s. 44(I) simply reaches unreasonably far.
It’s very easy to simply not know regarding AU/NZ relations, particularly pre-digital era. I was born in the late 1970s in NZ to Australian parents who were on holiday, they stayed to have me then came home. Yet it was only when I was in my mid 20s that I discovered I hadn’t been naturalised (parents didn’t know, yes they’re embarrassed now!). The concept had never come up once in any context whatsoever. I now hold dual citizenship, yet I have spent 3 months of my entire life in NZ, and they were the first 3. I grew up thinking I was Australian, but in fact wasn’t – legally – for most of my life. The things you learn.
Here is a personal example. I came to Australia from Britain with my parents over 50 years ago at the age of 12. I became an Australian citizen many years ago. My wife is born in Australia to Australian parents. I have three children, all born in Australia.
My children, because I am British born, are eligible to apply for a British passport and are therefore “entitled to the rights or privileges of a subject or a citizen of a foreign power …” Does this disqualify them from sitting in the Australian Parliament?
I have had my Dutch citizenship assumed and revoked twice over without being informed. This only became apparent when I made enquiries at the Dutch Consulate. Presumably, a change of Dutch government policy could make me a Dutch citizen again,without my knowing. Perhaps I am a citizen of North Korea as well! Since it is the foreign nation that determines whether we have or do not have citizenship and they do not even have to tell us, our destiny seems to be at the whim of foreign nations that might cause all sorts of mischief if they choose. If we don’t know we are a citizen of a foreign country and the country is not obliged to inform us of our citizenship, perhaps we need to be able to make some sort of general revocation if we get elected to Parliament.
Yes, this point could be the best one in any argument for overturning a case against these two.
Correct me if I am wrong but were not all Australians British citizens until 1969 and traveled with a British passport? And, at the time of the writing of the constitution “foreign power” could surely not possibly have referred to Britain given all Aussies were British. Surely the high court should only be defining this as at very least non-british and maybe even non-Commonwealth given the British parliament could enact laws applying to Australia till the Statute of Westminster. I guess it will never happen again so changing the constitution is unnecessary but it does also raise a peculiar double standard (as Mr Burnside has pointed out) in regard to our British head of state and her representative.
I think we started having Australian citizenship and passports in 1947
Thank you Julian Burnside for providing this page for those of us “bush lawyers” who care about our Constitution.
I am astonished by of the decision of High Court of Australia that it did not foresee in its ruling on section 44 of the Constitution that it would assist in the looming Constitutional crisis. By its strict interpretation of section 44 of the Australian Constitution, the High Court has failed to distinguish from those born overseas to those Australian citizens who by virtue of foreign laws (outside their powers to amend, change or repudiate) have had foreign citizenship bestowed upon them without their knowledge or assent. So now by virtue of the High Court ruling, our parliamentarians are dual citizens and fall foul of section 44(i).
Whilst the major parties argue over the minutiae of a way forward, Australia is becoming an international embarrassment! When such a crisis takes hold, sovereign risk follows, and before we know it international and domestic investors will turn away from Australia. An economic crisis will ensue.
In my opinion, there is only one way to restore order, The Prime Minister must immediately call for a referendum to amend the Constitution. Calling for an audit or a more onerous self disclosure of parliamentarians will only prolong the tenuous hold on the rule of law of Government and lead to more and more by-elections.
The recent experience of the approx 80% return on SSM questionnaire, should inform the government of the Australian preparedness to vote on matters that effect them! I think a Referendum on the issue of dual citizenship in the Constitution would elicit an equally strong commitment from voters, (albeit compulsory).
The Prime Minister should be reminded that more than 40% of the population was born overseas. Now all members of the House and Senators are increasingly falling foul of the archaic provisions os Secton 44. I am sure it is in all of their interests to approve a refendum be put to the people who undoubtedly would vote for an amendmendment.
Indeed, citizens of USA, Canada, New Zealand and the UK permit their parliamentarians to be dual citizens.
Based on my contentions, my questions are these:
How quickly could the Parliament pass the necessary laws to proceed with a Referendum?
Can a referendum change the Constitution retrospectively? For example could an amendment be retrospective to 1948/49 when Australian citizenship was first introduced?
My suggestion is to amend the Constitution and to replace section 44 (i) as follows:
“Any person who is not a resident of Australia and who has not sworn an oath of allegiance, obedience and adherence to the laws of the Parliament of Australia, its States and Territories …..shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives”.
This section applies retrospectively from. ……1948/1949? Now? Another date?
I think there will be an election fairly soon: before they could put up a referendum.
Although section 44(i) is way past its use-by date, I don’t know whether a referendum to change it would get up. As you probably know, we are very conservative when it comes to altering the Constitution.