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Submission to the Joint Standing Committee on Electoral Matters Inquiry on S 44 of the Commonwealth Constitution

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Submission to the Joint Standing Committee on Electoral Matters Inquiry on S 44 of the Commonwealth Constitution Submission to the Joint Standing Committee on Electoral Matters Inquiry on s 44 of the Commonwealth Constitution Michael Douglas* I write to provide a submission for the inquiry into matters relating to s 44 of the Constitution. In particular, my submission is in respect of whether the Parliament should amend s 44(i). A Summary I do not believe that s 44(i) ought to be amended. The arguments to the contrary seem to fall into two categories: first, procedural arguments, which claim that s 44(i) is unclear or too difficult to comply with, and second, more substantive arguments, which claim that s 44(i) is incompatible with a multicultural Australia or is otherwise unjust. There are problems with each of these lines of argument. In an environment where foreign state actors are increasingly seeking to exercise influence over other states, it is not unreasonable that the Parliament is comprised of MPs and Senators with unequivocally undivided loyalty to the people of Australia. B Analysis 1 Section 44(i) is clear Contrary to some recent suggestions to the contrary, the meaning of s 44(i) is clear. The putative point of difficulty is the criteria by which a person should determine whether they are a citizen (etc) of a foreign country. For the most part, the plain English meaning of the section aligns to its legal meaning. The plain language of the provision refers to, among other things, ‘a citizen of a foreign power’. If you were to ask a non-lawyer, ‘How do you find out whether you are a citizen of the United Kingdom?’, they would probably say, ‘You should contact the UK Government’. This mode of reasoning should be familiar to anyone who has travelled overseas:1 whether you are permitted to travel to a particular foreign country depends on that country’s visa requirements. Section 44(i) gives effect to a choice-of-law rule2 which largely aligns to that common-sense position. The concept of ‘citizenship’ is incapable of existing in a legal vacuum. It depends on a system of law for its existence.3 At common law, questions of foreign citizenship are * Senior Lecturer, UWA Law School. Email: [email protected]. 1 ‘In the year ended December 2016, there were 37.7 million crossings of Australia's international borders… This represents 1.6 crossings per person in the Australian population’: Australian Bureau of Statistics, 3401.0 - Overseas Arrivals and Departures, Australia, Dec 2016 (13 February 2017) <http://www.abs.gov.au/ausstats/[email protected]/products/961B6B53B87C130ACA2574030010BD05>. 2 The concept of a ‘choice-of-law rule’ is considered below. 3 Cf the institution of the ‘contract’: Amin Rasheed Shipping Corp v Kuwait Insurance Co [1984] AC 50, 65 (Lord Diplock). 1 determined by the lex patriae, the municipal law of the relevant foreign state.4 This follows the principle of international law that every sovereign state is to provide its own rules for the acquisition of its nationality.5 For the most part, the rule in s 44(i) gives effect to the common law rule. The suggested point of difficulty is the so-called ‘reasonable steps’ exception. 2 The reasonable steps exception is clear The so-called ‘reasonable steps’ exception received media attention in the lead up to,6 and following,7 the High Court’s decision on the ‘Citizenship Seven’ in Re Canavan.8 The exception may be understood as follows: Whether a person is incapable of being chosen or of sitting under s 44(i) is determined by the relevant system of foreign law, unless the person had taken all reasonable steps to divest himself or herself of any conflicting allegiance, and that foreign allegiance continues according to that foreign law. Apart from the judgment in Re Canavan,9 this exception can be identified in the majority judgments (5-2) in Sykes v Cleary (Mason CJ, Toohey and McHugh JJ in the plurality; Brennan J and Dawson J in separate reasons; Gaudron J and Deane J dissenting in separate reasons),10 as well as in the High Court’s decision in Sue v Hill.11 The exception has been clear for the last 15 years. Well before the emergence of the 2017 constitutional crisis, it was taught as part of the compulsory curriculum at Sydney Law School.12 It might be argued that arguments advanced in Re Canavan reflect a problem with the reasonable steps exception. Before the High Court, several of the referred persons argued that they should have received the benefit of the reasonable steps exception. Senators Canavan, Roberts and Xenophon argued that foreign citizenship must be voluntarily obtained or voluntarily retained. The Attorney-General argued further that ‘[a] person who does not know that they are, or ever were, a foreign citizen has not voluntarily obtained that status’.13 The Nationals, Joyce MP and Senator Nash, argued that s 44(i) required knowledge of foreign citizenship. They argued that the subjective beliefs of the person in question as to his or her 4 Oppenheimer v Cattermole [1976] AC 249, 261–2 (Lord Hailsham), 265 (Lord Pearson), 267 (Lord Cross), 282 (Lord Salmon); R v Burgess; Ex parte Henry (1936) 55 CLR 608, 640 (Latham CJ), 673 (Dixon J); Stoeck v Public Trustee [1921] 2 Ch 67, 82 (Russell J). 5 Nottebohm Case (Liechtenstein v Guatemala) (Second Phase) [1955] ICJ Rep 4, 20; see also the Convention on Certain Questions Relating to the Conflict of Nationality Laws (The Hague, 12 April 1930) 179 League of Nations Treaty Series 89, art 2. 6 Eg, Robin Speed, ‘No politician should resign or step down while High Court tests citizenship’, The Australian (online) 17 August 2017 <https://www.theaustralian.com.au/business/legal-affairs/no-politician-should-resign- or-step-down-while-high-court-tests-citizenship/news-story/8d4f349a72f80c9a15e5aabb6e3a800d>. 7 Eg, Paul Karp, ‘Dual citizenship and the 'reasonable steps' test for Australian MPs – explainer’, The Guardian (online) 11 December 2017 <https://www.theguardian.com/australia-news/2017/dec/11/dual-citizenship-and-the- reasonable-steps-test-for-australian-mps-explainer>. 8 Re Canavan [2017] HCA 45. 9 Ibid, [44]–[46], [55], [61]–[69]. 10 Sykes v Cleary (1992) 176 CLR 77, 107 (Mason CJ, Toohey and McHugh JJ), 114 (Brennan J), 131 (Dawson J). 11 Sue v Hill (1999) 199 CLR 462, 529 [176] (Gaudron J). 12 At the time of writing, Sykes v Cleary is on the reading guide for the compulsory final-year law subject, ‘Private International Law A’. 13 Attorney-General (Cth), ‘Annotated Submissions of the Attorney-General of the Commonwealth’, Submission in Re Canavan, No C11; C12; C13; C14; C15; C17; C18 of 2017, 26 September 2017, [6] <http://www.hcourt.gov.au/cases/case_c11-2017>. 2 citizenship should be referred to in determining whether that person took reasonable steps to renounce any foreign nationality.14 Despite these arguments, none of the referred persons received the protection of the reasonable steps exception. Predictably, the High Court preferred the respective submissions of Tony Windsor and the amicus,15 which aligned most closely to an orthodox treatment of the Sykes v Cleary majority. Their submissions were consistent with the plain text, the purpose and the drafting history of s 44(i) of the Constitution. The unanimous Court explicitly rejected the ‘mental element’ advanced by Deane J in Sykes v Cleary, which the alternative submissions each relied upon in some way.16 The structure of s 44(i) favoured this conclusion: while the first limb of the section (a person ‘under any acknowledgment of allegiance, obedience, or adherence to a foreign power’) requires a voluntary act, the second limb (a person who ‘is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power’) does not, and turns on foreign law. Moreover, the contrary view would be attenuated by practical difficulties. It would require a court to determine the state of mind of a self-interested politician while wholly dependent on the candour of that politician ‘whose interests are vitally engaged’.17 The Court stressed that more is required than a mere ‘reasonable effort’ to comply with s 44(i).18 It is only where foreign citizenship remains after the person has taken ‘reasonable steps’ to rid himself or herself of that citizenship that Australian law will recognise the exception to the application of foreign law. Section 44(i) is peremptory.19 Ignorance is no excuse.20 (And why should that not be the case? The same principle applies to regular people facing criminal charges—why not here?) The Court agreed that ‘the constitutional guarantee of single-minded loyalty provided by s 44(i) should not be made to depend upon the diligence which a candidate brings to the observance of the provision’.21 The result in Re Canavan was entirely predictable.22 The fact that contrary submissions were made does not undermine the proposition that the reasonable steps exception was clear, and continues to be clear. With respect, the arguments advanced by the Attorney and others before the High Court do not reflect uncertainty surrounding this exception.23 Rather, they reflect the fact that they were based on the instructions of self-interested politicians. 14 Barnaby Joyce MP, ‘Submissions of the Hon Barnaby Joyce MP’, Submission in Re Joyce, No C15 of 2017, 28 September 2017, [33] <http://www.hcourt.gov.au/cases/case_c15-2017>. 15 Appointed as contradictor in respect of the references concerning Xenophon, Canavan and Nash. 16 Re Canavan [2017] HCA 45, [13], [52]. 17 Ibid, [58]. 18 Ibid, [45], [61]. 19 Ibid, [61].
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