Allegiance, Foreign Citizenship and the Constitutional Right to Stand for Parliament
| Published date | 01 September 2020 |
| Author | Rayner Thwaites,Helen Irving |
| Date | 01 September 2020 |
| DOI | 10.1177/0067205X20927809 |
| Subject Matter | Articles |
Article
Allegiance, Foreign Citizenship
and the Constitutional Right
to Stand for Parliament
Rayner Thwaites* and Helen Irving**
Abstract
In 2017, in Re Canavan, the High Court of Australia found five sitting Members of the Common-
wealth Parliament to be citizens of a ‘foreign power’ and thus ineligible, under s 44(i) of the
Constitution, to hold their seats. In 2018, in Re Gallagher, the High Court found that a Senator who
had attempted unsuccessfully to renounce her British citizenship prior to her Senate candidature
was similarly ineligible. In this article, we argue that the conclusion in Re Canavan was incorrect:
that both the Court’s reasoning about the purpose of s 44(i)—to avoid ‘split allegiance’—and its
methodology for determining foreign citizenship were inconsistent in their own right and also
against its reasoning in Re Gallagher. We challenge the Court’s conflation of citizenship and
allegiance with obedience to a state. We examine the rules of international law for identifying a
person’s citizenship, as well as exceptions to these rules, including what came to be known as the
‘constitutional imperative’, which the Court held will exempt a foreign citizen from s 44(i) dis-
qualification under certain circumstances. We conclude that the Court, in seeking to avoid
‘uncertainty and instability’ in its interpretation of s 44(i), did the opposite. Had it looked, instead,
to the relevant foreign state for an authoritative determination of a person’s citizenship, confusion
and uncertainty surrounding s 44(i) could have been avoided, and a democratic understanding of
Australian citizenship could have been prioritised.
I Introduction
In October 2017, in Re Canavan; Re Ludlam; Re Waters; Re Roberts [No 2]; Re Joyce; Re Nash;
Re Xenophon (‘Re Canavan’), the High Court of Australia, acting as the Court of Disputed
* Senior Lecturer, Sydney Law School, The University of Sydney. Research for this article was generously support by an
Australian Research Council Discovery Early Career Researcher Award grant. My thanks to the participants in the
Melbourne Legal Theory Workshop, The University of Melbourne, 3 May 2019; and the Edinburgh Centre for
International and Global Law seminar, The University of Edinburgh, 10 May 2019, for valuable comments. The author
may be contacted at rayner.thwaites@sydney.edu.au.
** Professor, Sydney Law School, The University of Sydney. Research for this article was generously supported by an
Australian Research Council Discovery Project grant and the invaluable research assistance of Kristin Macintosh. The
author may be contacted at helen.irving@sydney.edu.au.
Federal Law Review
2020, Vol. 48(3) 299–323
ªThe Author(s) 2020
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/0067205X20927809
journals.sagepub.com/home/flr
Returns,
1
found five sitting Members of the Commonwealth Parliament ineligible to hold their
seats.
2
Each, the Court unanimously ruled, was a citizen of a ‘foreign power’ (in addition to being
Australian) at the date of nomination as a parliamentary candidate. As a result, each of the five, it
concluded, was in breach of s 44(i) of the Commonwealth Constitution. All were obliged to resign.
In early 2018, in Re Gallagher, a Senator who had attempted to renounce her foreign citizenship
prior to her nomination, but whose application had not been processed by the country in question
until after her election, was also disqualified by the Court.
3
These formal legal referrals led to, and
were accompanied by, additional resignations attributed to dual citizenship, totalling 15 members
of the 2016 Parliament.
4
Several of the disqualified Members of Parliament (‘MPs’) renounced
their foreign citizenship in order to re-contest their seats in subsequent by-elections. Beyond the
2016 Parliament, the new prominence of s 44(i) and accompanying case law led to a significant
number of withdrawals from candidature in the May 2019 election.
5
Section 44(i) provides that any person who:
[I]s 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-
shall be incapable of being chosen or of sitting as a senator or a member of the House of
Representatives.
6
Over the years, the impact of this provision on eligibility to serve in Parliament has attracted
significant attention in a number of official inquiries,
7
but, prior to 2017, little attention in case law.
There had been only a handful of cases concerning the section, and none with closely analogous
1. Section 47 of the Constitution empowers the Parliament to resolve disputes about eligibility, and also to provide for an
alternative mechanism for determination of disputed elections. The mechanism by which the cases on s 44(i) were heard
is now contained in the Commonwealth Electoral Act 1918 (Cth) which provides for the referral to the High Court by the
House of Parliament in which the question arises, of questions generated by the constitutional provisions for
disqualification.
2. (2017) 263 CLR 284 (‘Re Canavan’).
3. (2018) 263 CLR 460.
4. Merran Hitchick and Andy Ball, ‘Australia’s Citizenship Scramble: The Full List of MPs and Senators Affected’, The
Guardian (online), 9 May 2018 <https://www.theguardian.com/australia-news/ng-interactive/2017/dec/07/australias-
citizenship-scramble-which-mps-are-safe-whos-out-and-who-doesnt-know>; see also Damon Muller, ‘Five Leave the
Parliament’, Flagpost: Blog of the Parliamentary Library (Blog Post, 10 May 2018) <https://www.aph.gov.au/About_
Parliament/Parliamentary_Departments/Parliamentary_Librar y/FlagPost/2018/May/Five_leave_the_Parliament>.For
a detailed account of the period prior to Re Gallagher (n 3), see Tony Blackshield, ‘Com ment: The Unfortunate
Section Forty-Four’ (2018) 29(1) Public Law Review 3, 6–9.
5. Five candidates preselected by major parties withdrew prior to the date for close of nominations for the 2019 election
because of apprehended difficulties with s 44(i). See Jeremy Gans, ‘Second-Class Surnames’, Inside Story (online), 26
April 2019 <https://insidestory.org.au/second-class-surnames/>.
6. Australian Constitution s 44(i). Section 45 of the Constitution is also relevant to the issues raised in the s 44(i) cases.
Section 45 provides that if a Senator or Member of the House of Representatives ‘[b]ecomes subject to any of the
disabilities mentioned in the last preceding section’, including 44(i), ‘his place shall thereupon become vacant’. See Re
Nash [No 2] (2017) 263 CLR 443.
7. See Appendices in the Report of the Commonwealth Joint Standing Committee on Electoral Matters, Excluded: The
Impact of Section 44 on Australian Democracy (Report, May 2018) <https://www.aph.gov.au/Parliamentary_Business/
Committees/Joint/Electoral_Matters/Inquiry_into_matters_relating_to_Section_44_of_the_Constitution/Report_1>
(‘Excluded’). See also Australian Constitutional Commission, Final Report of the Constitutional Commission (Report,
June 1988) vol 1, ch 4.
300 Federal Law Review 48(3)
To continue reading
Request your trial