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Section 44 of the Australian Constitution Section 44 of the Australian Constitution: Reflections and Future Directions 2018 Queensland Schools Constitutional Convention, Queensland Parliament House, 11 October 2018 It is a real privilege to be speaking to you today. I attended this Constitutional Convention in 2004 – a long time ago now – but it was an event that sparked what has proven to be an enduring interest in our Constitution, our government and our legal system. I hope that you all feel inspired after today to learn more about our nations’ highest law and the relationships between the three branches of government in Australia. We are having a constitutional ‘moment’ in Australia. Our Constitution has captured the attention and interest of the public in a way that we have not seen for a very long time, and probably not since the dismissal of Gough Whitlam in the 1970s. Lying at the centre of the controversy is a provision that, until now, many Australians would probably have been blissfully unaware of. That provision is s 44 of the Australian Constitution. Section 44 is directed to eligibility for election to the Commonwealth Parliament. It sets out five grounds which disqualify a person from being a member of Parliament. This includes any person who: holds dual citizenship; has been convicted of an offence; is bankrupt; holds an ‘office of profit’ under the Crown; and has a pecuniary (or financial) interest in any agreement with the Commonwealth Public Service. To date, 15 sitting politicians have either been disqualified1 by the High Court of Australia or have resigned2 pre-emptively, because they held dual citizenship in contravention of s 44(i) of the Constitution. This situation is unprecedented, and some have been quick to characterise it as a ‘constitutional crisis’. These events have received international attention. However, the question that many countries seem to be asking is why Australia is having this ‘crisis’ at all – especially when dual nationals are permitted to serve in the parliaments of the United Kingdom, United States, Canada and New Zealand. I agree with Professor George Williams that there is an element of the absurd in this ‘crisis’. I say this because these Parliamentarians have not been involved in any wrongdoing and they continue to hold the support of the communities which they represent. They were disqualified simply because, as is the case for so many Australians, another country recognised them as a citizen – either because they were born overseas or one of their parents were. However, as recent events show, this ‘crisis’ shows no sign of abating. Over the last couple of months, the other grounds for disqualification in s 44 have come into focus. There has been speculation over whether the ‘Special Envoys’ created for Tony Abbott and Barnaby Joyce constitute an ‘office of profit’ in breach of s 44(iv) of the Constitution. Furthermore, it came to light during the recent leadership challenge that Peter Dutton has a beneficial interest in a trust, which has an agreement with the public service to provide childcare services in exchange for childcare subsidies. It has not yet been conclusively resolved whether this amounts to an indirect pecuniary interest in an agreement with the 1 Disqualifications: Barnaby Joyce, Senators Fiona Nash, Malcolm Roberts, Scott Ludlam, Larissa Waters, Katy Gallagher, Stephen Parry; Labor MP David Feeney 2 Resignations: Senators Jacqui Lambie, Skye Kakoschke-Moore; MPs John Alexander; Justine Keay, Susan Lamb, Rebekha Sharkie and Josh Wilson. Public Service in contravention of s 44(v). This is not something that the High Court has yet explained. What all of this shows is that it is an exciting time to be a student of the Constitution, and a participant in this Convention. Today, I want to speak about s 44(i) of the Constitution, which disqualifies from Parliament any person who is a subject or a citizen of a foreign power. I will begin by explaining the relationship between the High Court and the Commonwealth Constitution, before offering some reflections on the High Court’s recent decisions on s 44(i). I will then highlight some continuing problems with this provision, and will conclude by considering the possible options for reform. The Constitution and the High Court Our Constitution takes the form of a statute. It is, however, much more than an ordinary piece of legislation. In the words of Chief Justice Barwick, it is ‘an instrument of government which provides the foundation of a body politic’ and it has certain characteristics that affect the High Court’s approach to its interpretation. The Constitution was designed to endure over time, so it is drafted in broader terms than ordinary legislation. It can only be amended by the Parliament operating together with the people through a referendum, and not by the Parliament alone. It also has a specific purpose of establishing institutions of government, and it allocates powers between them. The High Court of Australia is the ultimate arbiter of the Australian Constitution. That means that the High Court has the power to decide whether the government’s legislation and actions are valid, and can strike them down if not. In interpreting the Constitution, the starting point for the High Court will be the actual text of the relevant provision. It is the job of the High Court to ascribe meaning to those words. Reflections on the High Court decisions Recently, the High Court has been required to determine the meaning of the words ‘citizen of a foreign power’ in s 44(i) of the Constitution. This provision disqualifies people from running for Parliament in two circumstances: 1. First, where that person is, through their own actions, under any acknowledgment of allegiance, obedience or adherence to a foreign power. 2. Second, where under the laws of another country, they are a subject or citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power. The High Court has considered the meaning of s 44(i) before. In the 1992 decision of Sykes v Cleary, the majority of the High Court found that a person could be a dual citizen, and not be disqualified under s 44(i), if that person had taken ‘all reasonable steps’ to renounce their foreign citizenship. Later on, in the 1998 decision of Sue v Hill, the High Court confirmed that the meaning of ‘foreign power’, as it is used in s 44(i), meant citizenship of a country other than Australia. Prior to this decision, and in fact until 1987, Australian citizens were described as ‘British subjects’, so the United Kingdom was not regarded as being a ‘foreign power’. This changed in Sue v Hill, when the High Court ruled that Senator Heather Hill was ineligible to sit in the Parliament, because she failed to renounce her British citizenship. Importantly, the High Court did not change the text of the Constitution. The provision remains exactly the same. The High Court applied the words of the Constitution to a situation that was not contemplated by the framers in 1901. The Court gave the words ‘foreign power’, in s 44(i), a meaning that reflected Australia’s independence from the United Kingdom. In this way, the High Court can ensure that the Constitution can evolve with changes in society and stay up- to-date and relevant. The facts of Re Canavan, which was decided at the end of last year, were a bit different to the earlier cases. Crucially, the Parliamentarians in Re Canavan were actually unaware that they held foreign citizenship at the time that they nominated for election. That did not matter to the High Court. In a rare unanimous judgment, the High Court adopted a very strict, literal interpretation of s 44(i). The Court afforded the words ‘citizen of a foreign power’ their ‘plain and natural meaning’. As five of the seven Parliamentarians were technically citizens of a foreign country at the time they nominated for election, they were found to be in breach of s 44(i) and were disqualified. Only two Parliamentarians – Senators Xenophon3 and Canavan4 – were safe. This was because the High Court held that neither of them were actually ‘citizens’ of a foreign power for the purposes of s 44(i). The Court was clear that a person could breach s 44(i), even if they had no knowledge of their foreign citizenship, and did not voluntarily acquire, or seek out, foreign citizenship. The Court also clarified that a person needed to have renounced their foreign citizenship before they nominated for election. Importantly, the process of 3 Senator Xenophon had ‘British overseas citizenship’. While this meant that he was technically a type of British citizen, he did not have the right of entry or abode – that is, his citizenship status did not allow him to enter or reside in the United Kingdom. Thus, he was not a ‘citizen’ for the purposes of s 44(i). 4 In the case of Senator Canavan, the High Court found that Canavan was not actually a citizen of Italy. renunciation has to be completed in accordance with the law and procedure of that foreign country. The High Court conceded that its interpretation of s 44(i) was ‘harsh’. However, when faced with ‘constructional choices’ in relation to s 44(i), the High Court chose the interpretation that will promote certainty and stability in future cases, even though it led to the disqualification of many members of Parliament. Problems The High Court has ruled decisively and definitively on this issue. We now know that a person will be disqualified under s 44(i) for holding dual citizenship, even if that person had no knowledge of it.
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