Citizenship gamble of Australian politics
Citizenship of federal parliamentarians has been a damaging gamble parties have been playing here in Australia, of late. The perpetrating saga emerged to limelight as the ruling coalition pushed forward the agenda to change the citizenship law that forces people to be perfect in English to receive Australian citizenship.
I am bit astonished and confused at the scale this row is engulfing the Australian political landscape. Why has the debate emerged so important after almost 120 years the constitution was prepared? The perception has become so strong that none in Australian history has ever been to federal parliament in 120 years. And as if none with dual citizenship was ever elected to this coveted position.
Citizenship concept and law was introduced in Australia only in 1969(1). Before this, all Australians were British nationals then.
The way it is unfolding now is satirical. Parties allege each other of being foreign nationals and put challenge to confirm they are only Australian citizens. One of them, One Nation senator, has been formally told by the High court that he was a British national during his nominations in the last election.
The climax of the story lies within the section 44 of the Australian constitution. The provision was prepared and approved when Australian had no concept of citizenship. All Australians were British citizens and were governed under the British Crown.
The section 44 of the current version of the Constitution reads(2):
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; or
ii. is attainted of treason, or has been convicted and is under sentence, or subject to be sentenced, for any offence punishable under the law of the Commonwealth or of a State by imprisonment for one year or longer; or
iii. is an undischarged bankrupt or insolvent; or
iv. holds any office of profit under the Crown, or any pension payable during the pleasure of the Crown out of any of the revenues of the Commonwealth: or
v. has any direct or indirect pecuniary interest in any agreement with the Public Service of the Commonwealth otherwise than as a member and in common with the other members of an incorporated company consisting of more than twenty-five persons;
shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.
But subsection (iv) does not apply to the office of any of the Queen’s Ministers of State for the Commonwealth, or of any of the Queen’s Ministers for a State, or to the receipt of pay, half pay, or a pension, by any person as an officer or member of the Queen’s navy or army, or to the receipt of pay as an officer or member of the naval or military forces of the Commonwealth by any person whose services are not wholly employed by the Commonwealth.
The fundamental question we could be asking at this situation is – were Australian parliamentarians not foreign nationals (citizens of Britain) before the citizenship concept was introduced here? Why was this obscure phrase put in place when Australian politicians debated the constitution a century ago? Had this been made clearer, it could all have been so different story for many federal politicians – including Deputy Prime Minister Barnaby Joyce, former resources minister Matt Canavan and One Nation senator Malcolm Roberts.
Had history played out differently, the constitution would have looked very different and the current saga might not have happened. The constitution makers debated this clause but did avoid while promulgating, in 1897:
… has done any act whereby he has become a subject or citizen or entitled to the rights or privileges of a subject or a citizen of a Foreign Power(3).
This debate tells us that only those Australian who made concerted steps to acquire foreign citizenship would be disqualified to sit in the federal parliament. However, the final draft of the constitution ended up with much broad meaning phrase.
The version back in 1901 reads like this (4):
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: or
(ii) Is attainted of treason, or has been convicted and is under sentence, or subject to be sentenced, for any offence punishable under the law of the Commonwealth or of a State by imprisonment for one year or longer: or
(iii) Is an undischarged bankrupt or insolvent: or
(iv.) Holds any office of profit under the Crown, or any pension payable during the pleasure of the Crown out of any of the revenues of the Commonwealth: or
(v.) Has any direct or indirect pecuniary interest in any agreement with the Public Service of the Commonwealth otherwise than as a member and in common with the other members of an incorporated company consisting of more than twenty-five persons:
shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.
Whatever the past, this has now threatened the political stability of Australia. The provision will certainly be obstacle to those who fail to renounce the previous citizenship. There are many countries who do not allow citizens to renounce citizenship and there are many countries who provide citizenship to individuals without their knowledge. For instance, in Italy an eligible person does not need to sign the doc – parents’ sending application on their behalf is enough to acquire citizenship. The country has been debating changing the law for over a century (5) and still hasn’t reach a conclusion.
The section has come under judicial review, public discourse of academic research only a few times in last 120 years. The common perception was that it was not practical for a person to maintain dual citizenship. In one instance, High Court in 1988, while disqualifying NSW Senator Robert Wood of the Nuclear Disarmament Party according to Australian Electoral Act, had said in a judgement (6):
The interpretation of S.44(i) and its applicability to an Australian citizen, who is also a citizen or who may, conceivably against his own wishes, be ‘entitled to the rights or privileges of … a citizen’ of the United Kingdom or of countries other than Australia, are questions of great contemporary importance.
In 1992, the High Court ruled that two candidates in a by-election were ineligible on the basis of dual citizenship. In 1999, Heather Hill was elected as the Queensland senator for One Nation, but was disqualified because she was also British.
The issue has become larger and grown to be bigger now. Australia has transitioned from the colonial rule to multiculturalism where foreign born individuals have controlled the power. Australia Day, though debated, is an event to celebrate that Australia has people from all countries across the world.
When I am given right to celebrate my Bhutanese nationality on this day, though I am not by citizenship but by birth, there is no reason why I shouldn’t be allowed to made decision as a parliamentarian.
It is time that Australia should talk about changing the rule to incorporate the ideals behind multicultural and multi-national.
References:
1. National Archives of Australia
http://www.naa.gov.au/collection/fact-sheets/fs187.aspx
2. Parliament of Australia
http://www.aph.gov.au/About_Parliament/Senate/Powers_practice_n_procedures/~/link.aspx?_id=074367F0015D42C2B005207F5642376A&_z=z#chapter-01_part-04_44
3. Australian Politics, http://australianpolitics.com/2017/08/30/george-williams-npc-address.html
4. The Founding Documents, https://www.foundingdocs.gov.au/resources/transcripts/cth1_doc_1900.pdf
5. Revoking nationality: What’s the deal across Europe? http://www.cafebabel.co.uk/politics/article/revoking-nationality-whats-the-deal-across-europe.html
6. Barnaby Joyce and Labor’s s44 giant piñata, by Ross Jones, https://independentaustralia.net/politics/politics-display/barnaby-joyce-and-labors-s44-giant-piata,10637