Commonwealth parliamentarians disqualified by reason of s 44(i) of the Constitution

Introduction

The High Court of Australia sitting as the Court of Disputed Returns in Re Canavan; Re Ludlam; Re Waters; Re Roberts [No 2]; Re Joyce; Re Nash; Re Xenophon [2017] HCA 45 has found that five members or former members of the Commonwealth Parliament were disqualified by reason of s 44(i) of the Commonwealth Constitution because they were dual citizens at the date of nomination for election to the Parliament.

Section 44(i)

Section 44 of the Constitution relevantly provides that 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.”

Under s 45(i) of the Constitution, the place of a senator or a member of the House of Representatives who becomes subject to any of the disabilities referred to in s 44 will become vacant.

Summary of proceedings and findings

Questions relating to the qualifications of six senators or former senators and one member of the House of Representatives were referred to the Court of Disputed Returns in circumstances in which there was material to suggest that each of the referred persons held dual citizenship at the date he or she nominated for election as a senator or member of the House of Representatives. The principal legal issue raised by the references was the proper construction of “a subject or a citizen  … of a foreign power”.

The references were dealt with by the Full Court (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ) which unanimously found that five of the seven parliamentarians were disqualified by reason of foreign citizenship. In making these findings, the Court summarised the proper construction of s 44(i) as follows (at [71]-[72]):

• Section 44(i) operated to render “incapable of being chosen or of sitting” persons who had the status of subject or citizen of a foreign power. Whether a person had that status was determined by the law of the relevant foreign power. Proof of the person’s knowledge of his or her foreign citizenship status (or of facts that might put a person on inquiry as to the possibility that he or she was a foreign citizen) was not necessary to bring about the disqualifying operation of s 44(i).
• A person who, at the time that he or she nominated for election, retained the status of subject or citizen of a foreign power would be disqualified by reason of s 44(i), except where the operation of the foreign law was contrary to the constitutional imperative that an Australian citizen not be irremediably prevented by foreign law from participation in representative government. Where it could be shown that the person had taken all steps that were reasonably required by the foreign law to renounce his or her citizenship and within his or her power, the constitutional imperative was engaged.

The Court said (at [19]; see also [13]) that this was the proper construction of s 44(i) because:

• it adhered most closely to the ordinary and natural meaning of the language of s 44(i);
• it accorded with the views of a majority of the Justices in Sykes v Cleary [1992] HCA 60; (1992) 176 CLR 77, the authority of which had been accepted by all parties;
• the drafting history of s 44(i) did not warrant a different conclusion; and
• it avoided the uncertainty and instability that attended the alternative approaches to the construction of s 44(i).

Court’s reasoning on s 44(i)

Text and structure of s 44(i)

Although in Sykes v Cleary, Brennan J had considered that s 44(i) consisted of three categories of disqualification, for the sake of clarity, the Court adopted a two-limb classification as follows:

• The first limb disqualified a person who was under any “acknowledgment” (connoting an act involving an exercise of the will of the person) of the specified kind. Thus, the words “under any acknowledgment” captured any person who had formally or informally acknowledged allegiance, obedience or adherence to a foreign power and who had not withdrawn or revoked the acknowledgment to that foreign power.
• The second limb disqualified a person who was a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power. The words “subject”, “citizen” and “entitled to the rights” connoted a state of affairs involving the existence of a status or of rights under the law of the foreign power.

Thus, the Court observed that s 44(i) expressly drew a distinction between a voluntary act of allegiance by a person on the one hand, and a state of affairs existing under foreign law, being the status of subjecthood or citizenship or the existence of the rights or privileges of subjecthood or citizenship, on the other (at [20]-[23]).

Purpose of s 44(i)

After noting that a majority in Sykes v Cleary had said that the purpose of s 44(i) was to ensure that members of the Commonwealth Parliament did not have a split allegiance, or did not owe allegiance to a foreign power, the Court said that it was clear that the first limb of s 44(i) pursued this purpose by looking to the conduct of the person whereas the second limb did not look to conduct manifesting an actual split in the allegiance of the person or to the person’s subjective feelings of allegiance but instead operated to disqualify the person whether or not he or she was, in fact, minded to act upon his or her duty of allegiance. Thus, as the Court further said, as a matter of the ordinary and natural meaning of the second limb, there was no requirement to prove actual allegiance as a state of mind because the second limb was concerned with the existence of a duty to a foreign power as an aspect of the status of citizenship (at [24]-[26]).

The Court then examined the drafting history of s 44(i) and concluded that this supported the wider purpose of s 44(i) which the ordinary and natural meaning of its language suggested (at [27]-[36]).

Role of foreign law

The Court explained the role of foreign law as follows (at [37]-[46]):

• Whether a person had the status of a subject or a citizen of a foreign power necessarily depended upon the law of the foreign power concerned because only that law could be the source of the status of citizenship or of the rights and duties involved in that status. That was the position adopted by all members of the Court in Sykes v Cleary and by a majority in Sue v Hill [1999] HCA 30; (1999) 199 CLR 462.
• However, all members of the Court in Sykes v Cleary had accepted that foreign law could not be determinative of the operation of s 44(i). Thus, s 44(i) would not be applied by an Australian court to disqualify a person by reason of foreign citizenship where this would undermine the system of representative and responsible government established under the Constitution.
• It was the clear intention of the Constitution that those of the people of the Commonwealth who were qualified to become senators or members of the House of Representatives were not to be irremediably disqualified. They were entitled to participate in representative government and the purpose of s 44(i) did not permit foreign law to deny that entitlement.
• Consistently with this, Sykes v Cleary had recognised that a foreign law could not render an Australian citizen irremediably incapable of being elected to either house of the Commonwealth Parliament and so s 44(i) would not disqualify an Australian citizen who continued to possess a foreign nationality notwithstanding that he or she had taken all reasonable steps under the relevant foreign law to divest himself or herself of that nationality.

Knowledge of foreign citizenship

The Court considered and rejected a number of alternative approaches to the construction of s 44(i), each of which would have incorporated some form of knowledge of foreign citizenship as an element of s 44(i).

One alternative approach was that s 44(i) required that foreign citizenship be voluntarily obtained or retained which imported a requirement that the person know or be wilfully blind about his or her foreign citizenship. On this approach, a natural-born Australian would be disqualified if he or she took active steps to become a foreign citizen or, after obtaining the requisite degree of knowledge that he or she was a foreign citizen, failed to take reasonable steps to renounce the foreign citizenship. In contrast, a naturalised Australian, who would ordinarily have knowledge of his or her pre-existing foreign citizenship, would be deemed, in the absence of taking reasonable steps to renounce the foreign citizenship, to have voluntarily retained it even if he or she honestly believed that naturalisation had involved renouncing the foreign citizenship (at [14]-[15]).

The Court rejected this approach for the following reasons (at [47]-[57]):

• Section 44(i) did not say that it operated only if the person knew of the disqualifying circumstance and, to read it as qualified in this way, represented a substantial departure from the ordinary and natural meaning of the text of the second limb.
• Such a condition would be inimical to the stability of representative government which required that there be certainty as to whether, as from the date of nomination, a candidate for election was capable of being chosen to sit, and of sitting, in the Commonwealth Parliament. There would need to be an investigation into the candidate’s state of mind but ss 44(i) and 45(i) provided no guidance as to the extent of knowledge which would be sufficient for the purposes of those provisions, which was not surprising since knowledge was not mentioned as an element of their operation.
• The approach echoed the approach of Deane J (dissenting on this issue) in Sykes v Cleary but Deane J’s approach was to be rejected because:
  • It drew no support from the text and structure of s 44(i).
  • It used the first limb of s 44(i), which expressly required voluntary manifestation of allegiance, to alter the ordinary and natural meaning of the second limb so that the second limb impliedly contained a similar mental element, with the result that the second limb was rendered otiose because it added nothing to the first limb in terms of pursuing the purpose of s 44(i).
  • It placed naturalised Australian citizens in a position of disadvantage with regards to natural-born Australian citizens whereas a majority in Sykes v Cleary had not supported such a distinction. The majority view in that case was correct because s 34 of the Constitution expressly drew a distinction between natural-born and naturalised Australians for the purpose of qualifying to be a candidate for election whereas s 44(i) drew no distinction between foreign citizenship by place of birth, by descent or by naturalisation. The absence of any such distinction from s 44(i) could not be a result of inadvertence by the drafters of the Constitution because the concept of citizenship by descent was commonplace at the time of federation, and because of the express provision made in s 34.

Another alternative approach, a variation on the first approach, was that s 44(i) required that a person be ‘put on notice’ of the foreign citizenship so that the person would be disqualified if he or she had knowledge of facts that, in the mind of a reasonable person taking a properly diligent approach to compliance with the Constitution, ought to have called into question the belief that he or she was not a foreign citizen and prompt proper inquiries. On this approach, s 44(i) applied only to a person who had by voluntary act acquired foreign citizenship, or exercised a right pursuant to the status of foreign citizenship, the latter being a way of describing an overt act of retention of foreign citizenship (at [17]-[18]).

The Court rejected this approach on the basis that it depended upon “the unstable distinction between overt voluntary acts and conscious omissions.” The Court said that the problems which would arise from this unstable distinction would be avoided by giving s 44(i) its natural and ordinary meaning (at [57]).

Yet another alternative approach was that s 44(i) required that foreign citizenship be chosen or maintained so that a person who had no knowledge of the foreign citizenship could not make a choice to retain or renounce the foreign citizenship (at [16]). If, having been elected to Parliament, the person then discovered that he or she was a foreign citizen, the person would have a period in which to take reasonable steps to renounce the foreign citizenship before the disqualification operated. The Court rejected this approach for the following reasons:

• There would be practical difficulties involved including the difficulties of proving or disproving a person’s state of mind in circumstances where there might be a want of candour on the part of the person and where the person’s entitlement to continue to sit in Parliament was under a cloud.
• Allowing a person, who had been elected to Parliament and who had then discovered that he or she was a foreign citizen, a period in which to take reasonable steps to renounce the foreign citizenship, would result in the person having a dual citizenship during that period, a state of affairs which could not be reconciled with the purpose of s 44(i) or s 45(i) (at [58]-[59]).

The Court then concluded on this aspect (at [60]):

“Finally, while it may be harsh to apply s 44(i) to disqualify a candidate born in Australia who has never had occasion to consider himself or herself as other than an Australian citizen and exclusively an Australian citizen, nomination for election is manifestly an occasion for serious reflection on this question; the nomination form for candidates for both the Senate and the House of Representatives requires candidates to declare that they are not rendered ineligible by s 44. It is necessary to bear in mind that the reference by a house of Parliament of a question of disqualification can arise only where the facts which establish the disqualification have been brought forward in Parliament. In the nature of things, those facts must always have been knowable. A candidate need show no greater diligence in relation to the timely discovery of those facts than the person who has successfully, albeit belatedly, brought them to the attention of the Parliament.”

Reasonable steps to renounce

The Court made points to the following effect regarding the reasonable steps necessary to renounce foreign citizenship (at [61]-[69]):

• Section 44(i) was cast in peremptory terms. Therefore, it was not concerned with whether a person had been negligent in failing to comply with its requirements. Nor did it disqualify only those who had not made reasonable efforts to conform to its requirements. This was made clear in Sykes v Cleary.
• The majority in Sykes v Cleary had said that the steps reasonably available to a candidate to free himself or herself from the ties of foreign citizenship depended on the individual’s situation, the requirements of the relevant foreign law and the extent of the connection between the individual and the foreign country.
• Thus, renouncing foreign allegiance in a naturalisation ceremony might not be sufficient if this did not meet the reasonable requirements of the foreign law for the divesting of the foreign citizenship. However, if, for example, a foreign law required that the citizens of the foreign country could renounce their citizenship only by acts of renunciation carried out in the territory of the foreign country, an Australian citizen could ignore that requirement if his or her presence within the territory could involve risks to person or property. There was no need to give further examples of when a foreign law requirement would not prevent an Australian citizen from seeking election to the Commonwealth Parliament as none of the referred persons were faced with such obstacles to freeing themselves of their foreign citizenship.

Court’s decision on the referred persons

Senator Canavan

Senator Canavan was born in Australia to Australian parents. His maternal grandparents had, however, been born in Italy and had later become naturalised Australians, the grandfather shortly before his daughter had been born and the grandmother after her daughter had been born. By becoming Australian citizens, and by making Australia their place of residence, under Italian citizenship law, the grandparents had ceased to be Italian citizens. At the time of their daughter’s birth, the fact that her mother was an Italian citizen did not confer Italian citizenship on her because the law was that only the child of a father who was an Italian citizen became an Italian citizen by birth. As Senator Canavan’s mother had been born after her father had been naturalised, Italian citizenship was not conferred on her so she was an Australian citizen only when she was born, as was Senator Canavan when he was born. However, many years later, the law was ruled to be discriminatory and unconstitutional and, by reason of a retrospective effect given to the ruling that Italian citizenship passed through both the paternal and maternal line, Senator Canavan’s mother became an Italian citizen by birth and, on one view, so did Senator Canavan retroactively to the date of his birth. However, the Court could not be satisfied that Senator Canavan was a citizen of Italy. The Court said that given the potential for Italian citizenship by descent to extend indefinitely through the generations into the public life of an adopted home, the reasonable view of Italian law was that it required that positive steps be taken as conditions precedent to Italian citizenship. As Senator Canavan had not taken any such positive steps to become an Italian citizen, he was not disqualified (at [74]-[87]).

Scott Ludlam

Mr Ludlam, a former senator, was born in New Zealand. He was 8 years old when he and his family arrived in Australia. They later became naturalised Australian citizens. At the time of his birth, under New Zealand citizenship law, Mr Ludlam was a citizen of New Zealand by birth and this had not been affected by later changes to the law. As he had not lost his citizenship by renouncing it or by ministerial order as provided for by New Zealand law at the date he nominated for election, he was disqualified by reason of his foreign citizenship (at [88]-[92]).

Larissa Waters

Ms Waters, a former senator, was born in Canada. At the time of her birth, her Australian parents had been living in Canada for study and work purposes. Her birth was registered with the Australian High Commission and she was an Australian citizen by descent. When she was aged 11 months, the family returned to live in Australia. At the time of her birth, under Canadian citizenship law, she was a natural born Canadian citizen and this was not affected by her birth having been registered with the Australian High Commission. As she had not renounced her Canadian citizenship at the time of nomination for election, she was disqualified by reason of foreign citizenship (at [93]-[98]).

Senator Roberts

Senator Roberts was born in India. His father had been born in Wales and his mother had been born in Australia. His name had been recorded in the High Commissioner’s Record of Citizens of the United Kingdom and Colonies. He was around 7 years of age when he and his family moved to Australia and he later became a naturalised Australian citizen. Under the citizenship law of the United Kingdom, by virtue of his father’s nationality, he was born a citizen of the United Kingdom and Colonies and later, after a change in law, had become a British citizen by descent. He only ceased to be a British citizen on the registration of his declaration of renunciation of citizenship as provided for by the law of the United Kingdom. As this occurred on a date after he had nominated for election as a senator, he was found to be incapable of being chosen or sitting as a senator under s 44(i) (at [99]-[103]).

The Hon Barnaby Joyce MP

Mr Joyce was born in Australia. His father had been born in New Zealand and his mother in Australia. At the time of his birth, under New Zealand citizenship law, Mr Joyce became a New Zealand citizen by descent because his father had been a New Zealand citizen. Although his father had subsequently become a naturalised Australian citizen resulting in his ceasing to be a New Zealand citizen, this renunciation had operated with prospective effect only and had not affected his son’s status as a New Zealand citizen. That status could only be lost by renunciation or, in limited circumstances, by ministerial order, neither of which had occurred at the date of Mr Joyce’s nomination for election. Accordingly, Mr Joyce was incapable of being chosen or sitting as a member of the House of Representatives (at [104]-[111]).

Senator Nash

Senator Nash was born in Australia. Her father had been born in Scotland and her mother in Australia. At the time of Senator Nash’s birth, her father had been a citizen of the United Kingdom and colonies otherwise then by descent so, as a person who had been born a legitimate child outside the United Kingdom and colonies to such a father, Senator Nash had become a citizen of the United Kingdom and colonies by descent and then, as a result of changes to the law, had later acquired the right of abode in the United Kingdom and finally had become a British citizen. She remained a British citizen as at the date of her nomination as a senator, having not renounced that status and not having been deprived of it, and, accordingly, she was incapable of being chosen or sitting as a senator by reason of s 44(i) (at [112]-[119]).

Senator Xenophon

Senator Xenophon was born in Australia. His father had been born in Cyprus and his mother had been born in Greece. After Senator Xenophon’s birth, both parents had become naturalised Australians. Prior to his first election as a senator, Senator Xenophon had renounced any entitlement that he might have had to the citizenship of Greece or Cyprus. However, the island of Cyprus had been a British possession when Senator Xenophon’s father had been born and Senator Xenophon’s father had been deemed to be a natural-born British subject. After changes in the law, the father had been reclassified as a citizen of the United Kingdom and colonies otherwise than by descent without the right of abode, which was not affected by his naturalisation as an Australian citizen, and then later as a “British Overseas Citizen” (”BOC”). When Senator Xenophon was born, as a legitimate child of a father who was a citizen of the United Kingdom and colonies otherwise than by descent, he automatically became a citizen of the United Kingdom and colonies by descent without the right of abode, and was also subsequently reclassified as a BOC. He was then a BOC at the time he nominated for election as a senator. However, in the Court’s view, a BOC was not a citizen of a foreign power for the purposes of s 44(i) because the status of BOC did not confer the rights or privileges of a citizen as that term was generally understood as a BOC did not have the right to enter or reside in the United Kingdom. The Court also said that, having regard to the purpose of s 44(i) which was to ensure that members of the Commonwealth Parliament did not have a split allegiance, it did not appear that Senator Xenophon’s status as a BOC entailed any reciprocal obligation of allegiance to the United Kingdom per se or to Her Majesty the Queen in right of the United Kingdom. Accordingly, Senator Xenophon was not disqualified as a foreign citizen (at [120]-[135]).