The fate of seven of Australia’s most senior politicians is currently in the hands of the High Court.
The three-day full bench hearing in the Court of Disputed Returns is nearing an end. It will determine whether the Senators breached the Constitution by holding dual citizenship.
The ‘Citizenship Seven’ are: Barnaby Joyce of the lower house and Senators Matt Canavan, Fiona Nash, Malcolm Roberts, Nick Xenophon, Larissa Waters and Scott Ludlam.
Their status came to light in August this year after it was revealed three were born overseas, while the remaining four inherited foreign citizenship by descent.
This isn’t the first time a parliamentarian’s citizenship has been called into question. In 1999, the High Court ruled that Senator Heather Hill’s election was invalid, due to the fact she held dual citizenship of Australia and the United Kingdom.
What does the law say?
The law in question can be found in Section 44 of the Australian Constitution which sets out restrictions on who can be a candidate for Federal Parliament
Subsection (i) states that anyone who 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.”
However, Section 44 has been the topic of regular review and debate, which suggests that it may not be as black and white as people may think.
– In 1981, the Senate Standing Committee on Constitutional and Legal Affairs released a report recommending that Section 44 and all five of it’s subsections be either amended or deleted.
– The Australian Democrats have proposed bills to address the perceived limitations of Section 44 on four separate occasions: in 1985, 1989, 1992, and 2000. None have been fully debated.
– In 1996, following an inquiry by the House of Representatives’ Standing Committee on Legal and Constitutional Affairs, it was recommended that a referendum be held to make changes to the Constitution. This specifically included that Section 44(i) be deleted with a new provision “requiring candidates and members of parliament to be Australian citizens,” meaning that as long as they were citizens of Australia, it wouldn’t matter if they were also citizens of another country. The government responded to the recommendations, however there has been no formal consideration of the issue.
– And, in 2003, the Senate passed a motion expressing that the Constitution should be amended to remove the current prohibition on dual citizens.
So… with the most recent Census showing that nearly half of all Australians were either born overseas or have one or both parents who were born overseas, is Section 44 of the Constitution failing to keep up with the times?
What does the High Court have to determine?
The law states that the senators should be disqualified unless they took reasonable steps to renounce their dual citizenship. This is made difficult by a number of the senators claiming they weren’t even aware they held dual citizenship.
As well as disqualification, Section 46 of the Constitution sets out this penalty for sitting when disqualified:
“… for every day on which he sits, be liable to pay the sum of one hundred pounds to any person who sues for it in any court of competent jurisdiction.”
The final day of the hearing is tomorrow (Thursday October 12) with the High Court expected to hand down its decision relatively quickly. And it’s likely to have huge ramifications for the current Federal Government.
While Senators Waters, Ludlam and Canavan have already resigned and Nick Xenophon has announced he’s returning to South Australian politics… the fate of the Deputy Prime Minister, Barnaby Joyce, and Senators Nash and Roberts, is still unknown.
Prime Minister Malcolm Turnbull is confident the High Court will uphold the eligibility of the senators who inherited their citizenships by descent. But if he’s wrong, and any of the senators are disqualified, it will trigger a huge re-shuffle and a number of costly by-elections. – Tayla O’Brien