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)
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
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]
3 The reasonable steps exception is not unusual
In various contexts, Australian courts will give effect to the laws of foreign places. They do so according to principles of domestic law which are known as ‘choice-of-law rules’.24 Section 44(i) contains a choice-of-law rule which is described above: generally,25 whether a person is a citizen of a foreign state is to be determined by the law of the relevant foreign state. Arguably, s 118 of the Constitution gives effect to an intra-Australian choice-of-law rule by requiring full faith and credit to be given ‘throughout the Commonwealth to the laws, the public Acts and records, and the judicial proceedings of every State’ (emphasis added).26 An Australian court may apply the law of the place of the wrong to negligence occurring overseas,27 or a system of foreign law selected by the parties under a cross-border contract.28 The rule in s 44(i) is not unusual; indeed, it would be more unusual if questions of foreign citizenship were not determined the relevant system of foreign law.
The reasonable steps exception is grounded in a long legal tradition. Foreign law applies in common law courts only insofar that its application is consistent with forum (ie, local) policy.29 Courts will not recognise a right or legal relationship under the law of a foreign country if that would be inconsistent with the fundamental public policy of the forum (ie, the local jurisdiction).30 The cases where the bare concept of public policy does the most work involve obvious injustice.31 For example, in Oppenheimer v Cattermole, the House of Lords considered the nationality of a German-born Jew who had fled to England to escape persecution, for the purposes of assessing his taxation obligations. Relevantly, it was held that British naturalisation did not affect the person’s foreign nationality for the purposes of the relevant foreign municipal law.32 It was also held that a 1941 Nazi decree, which purported to strip German Jews of their citizenship, was uniquely barbarous;33 Lord Cross held that the decree involved ‘so grave an infringement of human rights that the courts of this country ought to refuse to recognise it as a law at all’.34
24 It is ‘axiomatic’ that the local court, the forum, provides its own choice-of-law rules: John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503, 527 [42] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ) (‘Pfeiffer’). 25 That is, subject to the reasonable steps exception. 26 See Jeremy Kirk, ‘Conflicts and Choice of Law within the Australian Constitutional Context’ (2003) 31(2) Federal Law Review 247. 27 Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491. 28 Akai Pty Ltd v People’s Insurance Co Ltd (1996) 188 CLR 418; see also the Hague Principles, which may be part of Australian law in the near future: Hague Conference on Private International Law, Principles on Choice of Law in International Commercial Contracts, The Hague Conference on Private International Law Permanent Bureau, 2015
Against that backdrop, the kinds of laws considered in Re Canavan were relatively bland. Australian law recognises citizenship by birth and citizenship by descent;35 the foreign laws considered in this case were not significantly different. It was both predictable and appropriate that Joyce, Nash, Roberts, Ludlam and Waters fell did not receive the benefit of the exception. The mere fact that foreign law is different does not mean that its application would be inconsistent with forum policy. As Brennan J recognised in the Spycatcher case—where the Prime Minister famously succeeded as counsel—the mere fact that there is a conflict of laws (ie, a substantive difference between local law and the relevant foreign law) is an insufficient basis for the invocation of a public policy exception to the application of foreign law.36
4 Section 44(i) is not procedurally unfair
The determination of the status of the Citizenship Seven is perhaps most significant in respect of what was not held. None of the persons referred had the benefit of the reasonable steps exception recognised by the majority in Sykes v Cleary. None of them were burdened by unwanted foreign citizenship despite taking ‘reasonable steps’. If they had bothered to make inquiries, it is likely that they would have recognised their foreign allegiances, and it is also likely that the foreign states involved—the United Kingdom, New Zealand, Canada and Italy— would not have presented any barrier to the renunciation of that citizenship. The problem was not with s 44(i); it was with the politicians who either (i) failed to determine their citizenship status, or (ii) failed to understand the Constitution prior to seeking election.
In the future, s 44(i) will not present any meaningful procedural barrier to persons seeking election to Parliament. Most prudent individuals will be able to determine their citizenship status without undue difficulty. Legal rules, including those in respect of citizenship, can often be expressed as conditionals; for example, ‘If you are born in country X, then you are a citizen of country X’. The judgment in Re Canavan illustrates some of the kinds of ‘conditions’ whose satisfaction could result in foreign citizenship:
Birth in a foreign place (citizenship by birth). Birth to a parent who is a citizen of a foreign place (citizenship by descent). Marriage to a foreign citizen (citizenship by marriage). Living in a foreign place, etc (citizenship by naturalisation).
With this list of ‘connecting factors’ in mind, the candidate may have a look at their family tree, and their spouse, and quickly come up with a list of foreign states which may potentially confer citizenship on the candidate. They can then check their status with the authorities of those legal systems, and if necessary, take any steps required by the relevant foreign legal system to renounce that foreign citizenship. This may require some effort and time; it may prevent last-minute nominations for election. But there is nothing wrong with that—in my view, this is desirable. We should not want lazy people making law and governing. In the words of the High Court: ‘nomination for election is manifestly an occasion for serious reflection on this question’ of foreign citizenship.37 In the words of Senator Hinch: ‘if Hinch could do it it can't be that hard’.38
35 Australian Citizenship Act 2007 (Cth) ss 12, 16. 36 Attorney-General (UK) v Heinemann Publishers Australia Pty Ltd (‘Spycatcher’ case) (1988) 165 CLR 30, 49– 50 (Brennan J). 37 Re Canavan [2017] HCA 45, [60]. 38 See Twitter @humanheadline (27 December 2017)
The only category of cases where s 44(i) presents what I call ‘procedural unfairness’ is where a candidate has no way of determining their citizenship status. (I note that none of the Citizenship Seven fell in this category.) This may arise, for example, where a candidate lacks information in respect of a parent, or a grandparent, or perhaps in an extreme case, where a candidate does not know where they were born. However, if the candidate is still ignorant of their foreign citizenship status after making a rigorous effort to determine that issue, the candidate should be excused of the strict requirements of s 44(i) under current principles. Although the provision does not require a mere ‘reasonable effort’ towards compliance, arguably, fact-finding should be treated as part of the process of renunciation of foreign citizenship, and so the reasonable steps exception would cover those kinds of candidates.39 The High Court’s interpretation of s 44(i) thus provides an acceptable degree of procedural fairness even in extreme cases.
5 Section 44(i) is not otherwise unjust
Australia is a nation of migrants. It is a multicultural society, where most citizens can trace their heritage to another part of the world. In that context, since the emergence of this crisis, some have advocated for amendment to s 44(i) to accommodate dual nationals as candidates for election to the Parliament of Australia.40
The argument that s 44(i) is necessarily incompatible with multiculturalism depends on a fallacy of equivocation: citizenship and culture are not the same thing. We may recognise and defend the benefits of multiculturalism in Australian society while also demanding that every Parliamentarian is a citizen of Australia and only of Australia. Citizenship of Australia, and only Australia, irrespective of cultural background, denotes acceptance of core Australian values.41
Although there may be a positive correlation between possessing non-Australian citizenship and coming from a minority cultural background, the fact that s 44(i) is not procedurally unfair indicates that persons from those backgrounds will not be prevented from participating as representatives in our democracy. The High Court has ensured that result: in Re Canavan, it held that the reasonable steps exception gives effect to the ‘constitutional imperative’ that citizens ought to be able to participate in representative government.42
It may be conceded that the mischief which s 44(i) seeks to avoid—that of divided loyalties and of foreign influence on the conduct of Australian government—does not depend merely on citizenship. As the allegations in respect of Russian influence on the 2016 United States Presidential election remind us, foreign actors may exert power over domestic matters through
39 Cf Re Canavan [2017] HCA 45, [45], [61]. 40 Eg, Adrienne Stone, Cheryl Saunders, Michael Crommelin and William Partlet, ‘Section 44: Changing the Constitution to Reflect Modern Australia’, Pursuit (online) 21 August 2017
But just because s 44(i) will not prevent foreign influence altogether does not mean that it is not worthwhile. It may be reasonably assumed that, in some cases, an Australian with dual citizenship will hold actual loyalty to a foreign state. We would not accept that kind of conflict of interest in other contexts. Fiduciaries (like lawyers) must avoid any real sensible possibility of conflict.43 A director must be loyal to the company, and can face penal consequences as a result of a conflict of interest.44 Directors may (and do) give up other positions to avoid conflicts. Why should we tolerate a lesser standard when it comes to some of the most important positions in society?
The fact that an inquiry is being conducted into s 44 at the same time that the Government is proposing legislative reforms in respect of foreign interference in the electoral process is perplexing, to say the least.45 I accept that we should cleanse our democracy from the influence of foreign actors and their money, but the suggested change underlying this inquiry into s 44 would work in the opposite direction. The more sceptical among us may infer that this juxtaposition reflects political expediency.
There is nothing wrong with s 44(i). In my view, the recent criticism that has been directed towards s 44(i)46 would be better directed towards the politicians who, while seeking to draft legislation for a living, failed to come to terms with the plain language of our Constitution prior to seeking election.47
43 Boardman v Phipps [1967] 2 AC 46. 44 Corporations Act 2001 (Cth) s 181. 45 Cf National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017 (Cth). 46 Eg, Jeremy Gans, ‘The Mikado in the Constitution: Re Canavan; Re Ludlam; Re Waters; Re Roberts [No 2]; Re Joyce; Re Nash; Re Xenophon [2017] HCA 45’, Opinions on High (30 October 2017)