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Section 44 Of The Constitution Does NOT Mean That Nobody Is Eligible To Be Elected To Parliament

Question Time is not about to get a lot quieter.

17/08/2017 3:45 PM AEST | Updated 17/08/2017 3:45 PM AEST
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"Everybody needs to take a deep breath."

Everybody needs to take a deep breath.

While section 44 is undoubtedly causing some sleepless nights for our Deputy Prime Minister Barnaby Joyce, it does not mean that nobody is eligible to be elected to the Australian Parliament.

Robert Angyal is correct to point that if section 44 is read literally it has a significant reach. The section disqualifies anybody 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 a citizen of a foreign power'.

So -- on its face -- if Saint Kitts and Nevis tomorrow amended its citizenship laws so that every Australian citizen was entitled to the rights and privileges of a citizen of Saint Kitts and Nevis that would bring the Australian political system to its knees by rendering every single parliamentarian incapable of sitting in Parliament. That is what the words seem to say.

That is clearly an absurd result. Which is why the High Court has not read the section literally and has instead given it a more limited meaning based upon reading the words in light of the intended purpose underpinning the section.

In fact, back in 1992 the High Court considered that very hypothetical. The judges noted that under s. 44 questions of eligibility in Australia turn on the citizenship laws of foreign countries. They read down the section precisely to avoid the 'obviously objectionable and unintended consequences' that would flow from a literal reading, particularly the 'extreme hypothetical example' of a foreign country unilaterally foisting citizenship on Australian parliamentarians in order to disqualify the whole of the Australian Parliament.

Instead, Justice Deane held that the first words of the section ('is under any acknowledgement of allegiance, obedience or adherence to a foreign power') limit the second part ('is a subject or a citizen or entitled to the rights or privileges or a subject or citizen of a foreign power'). An element of acceptance or at least acquiescence on the part of the relevant person is required. This means that a person will not be ineligible unless 'the relevant status, rights or privileges have been sought, accepted, asserted or acquiesced in by the person concerned'.

Further, if a person has taken reasonable steps to renounce their foreign nationality that will be sufficient to avoid disqualification.

This more limited interpretation is consistent with the original intention of the section, which was to ensure that members of the Australian Parliament had an undivided loyalty to Australia and would not be subject to any improper influence from foreign governments.

Exactly how far this reaches is the question that lies to be determined in the current five cases that have been referred to the High Court. In the case of our Deputy Prime Minister the key question will be whether the fact that his father was born overseas (and he was therefore entitled to New Zealand citizenship by descent) is sufficient by itself to mean that he has acquiesced to his status as a dual citizen.

The upcoming hearings provide an opportunity for the High Court to clarify the outer reaches of section 44. But, for all of the controversy surrounding this issue in recent weeks, it is already clear that section 44 is not so broad that it disqualifies everybody from the Australian Parliament.

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