By Richard Snow
Australia has recently lost nine members of parliament who had dual nationality, including the Deputy Prime Minister, Barnaby Joyce, and it’s possible Australia might go to an early federal election. Meanwhile nothing is being done in the Australian parliament. Should Australia change its constitution to allow dual nationals to sit in parliament?
Section 44 of the Australian constitution prohibits people from sitting in parliament if they are dual nationals. The section reads in part:
- Any person who – (i.) 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 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.
Oddly, the constitution doesn’t say that you have to be an Australian citizen to sit in parliament, because, when the Australian constitution was written in the late 1980s, there was no such thing as Australian citizenship. That didn’t arrive until 1949. However, a requirement that nominees be Australian citizens is contained in the electoral act. If a person may have an inherited dual nationality
Australia’s provision on dual nationality are out of line with Britain and the US, in which a dual national may sit in parliament or congress.
In the last six months, several members have resigned their positions after discovering that they had inherited dual nationality, mostly from having New Zealand or British parents. One of these has been Barnaby Joyce, Deputy Prime Minister, who discovered that he was a dual New Zealand citizen by virtue of his father. None of this should have come as a surprise. Two court cases twenty years ago had put people on notice that dual nationals could be booted from office by the High Court. What then accounts for the sudden rash of people declaring themselves ineligible or being referred to the High Court? Basically sloppiness before their nomination. The Labor party, apparently, has a rigorous process for checking the eligibility of candidates. Other parties, it seems, do not. The government is now facing two by-elections where two members of the House of Representatives have had to resign, and after renouncing their dual citizenship, are re-contesting their own seats. The government has a majority of only one in the House of Reps. If any more invalid members are found in the House of Reps, the government could theoretically be forced to an early election.
The current mess has resulted in parliament deciding that when the House of Reps resumes in December, all MPs must table documents about their place of birth, and their parent’s places of birth, and evidence that they have renounced any dual nationality they may have inherited, before they nominated.
In the long run, how should this be fixed? One suggestion is to amend section 44 of the constitution and remove the prohibition on dual nationals. In the past, only 8 out of 44 attempts to amend the constitution have been successful. Amendment requires a majority of Australians voting for the amendment, and a majority in a majority of states. One argument for amending the constitution is that the requirement is out of line with modern Australia. A quarter of all Australians were born overseas, and another quarter have at least on parent born overseas. Up to a quarter of the Australian population may have dual citizenship, depending on the laws of the country their parents were born in.
One argument against allowing dual nationals in parliament is that they may vote on issues where they have a conflict of interest, such as trade agreements. The process in Australia for ratifying a trade agreement is that a trade deal is signed by the Minister for Trade, then endorsed by cabinet, then goes to a parliamentary committee. However that committee does not have the power to amend individual clauses of the agreement, and the committee always has a majority from the governing party or coalition. It normally recommends the agreement to the parliament. After the committee considers the agreement, legislation to implement the agreement is passed through the House of Reps and the Senate. Again the parliament doesn’t vote on individual clauses in the agreement, just the implementing legislation. Individual members of the parliament don’t have much scope to individually alter sections of a trade agreement.
In the meantime, Australia’s parliament is doing precious little. The prime minister deferred the next sitting by a week, to 5 December, hoping to buy time and not face various issues while he sits on a paper thin majority.
In the event that parliament does not try to amend the constitution, the best that can be done is to change the nomination papers to require details of the nominees parents and their place of birth, and a statement of why the nominee believes they do not have dual nationality. At least that would make them turn their minds to the issue.
~ ~ Richard Snow is an ex-economist now studying a Master’s in International Relations.
AFTINET article on process for ratifying trade deals in Australia: http://aftinet.org.au/cms/Australian-parliamentary-process-for-trade-agreements
BBC: The citizenship saga hampering Australia’s government, here
Wikipedia article on citizenship saga: https://en.wikipedia.org/wiki/2017_Australian_parliamentary_eligibility_crisis