Australia’s Bizarre Constitutional Crisis

 /  Jan. 7, 2018, 9:50 p.m.

Australian Parliament

Over the past few months, Australia has been ensnared in political chaos. Since the 2016 federal election, a number of Australian MPs and senators have been declared ineligible for Parliament, mostly due to holding dual citizenships. As Parliament prepares to return for its 2018 session, even more representatives’ fates remain uncertain.

The dual-citizenship ineligibilities began in July 2017, when a Perth-based lawyer inquired about the citizenship status of the Australia Greens Senator Scott Ludlam. This inquiry exposed Senator Ludlam as a national of both Australia and New Zealand. Although he did end up resigning, Ludlam argued that he believed his naturalization as an Australian citizen was the end of his New Zealand citizenship. Only four days later, the dual-citizenship law claimed a second victim, Senator Larissa Waters. Upon discovering that anyone born in Canada automatically becomes a Canadian citizen, Waters, born in Winnipeg to Australian parents, resigned. These resignations cost the Greens two of their nine seats in the Senate.

The cause of this disastrous blow to the Greens can be found in Section 44(i) of Australia’s Constitution. This clause states that any person who "is 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." This section sought to fight issues of treason and ensure that the interests of the country were never compromised at a time of newfound independence for Australia.   

Today, this outdated law seems more like a cudgel for an unintentional oversight than a tool for ensuring the loyalties of lawmakers. When Prime Minister Malcolm Turnbull criticized Ludlam and Waters, he mentioned their “incredible sloppiness” and “extraordinary negligence,” not their lack of loyalty to Australia.

Within a week of these harsh criticisms, however, Turnbull’s own liberal coalition began to suffer losses when Senator Matt Canavan, the Minister for Resources and Northern Australia, announced that he was stepping down for potentially holding Italian citizenship. Over the next months, a flurry of investigations led the High Court to declare One Nation Senator Malcolm Roberts, Senator Fiona Nash (deputy leader of the National Party), and Deputy Prime Minister Barnaby Joyce ineligible to stand for Parliament given that each held citizenship in another country at the time they were nominated. In addition, Senate President Stephen Parry, Liberal MP John Alexander, Independent Senator Jacqui Lambie, and Nick Xenophon Team (NXT) Senator Skye Kakoschke-Moore were all forced to resign as a consequence of their dual-citizenship.

Not only has the recent impact of Section 44(i)’s prohibition on dual citizenship been shocking, but many argue that this rule is both arcane and irrelevant, as Australia is, in a large way, a nation of immigrants. Last year’s census showed 26.3 percent of Australians were born overseas, many of whom unwittingly retain their previous nationalities. Additionally, many politicians argue that they have unknowingly inherited foreign nationalities from their parents. One politician to make such an argument is lower house MP John Alexander, who acquired dual nationality through his British-born father. Despite these claims, many critics point out that these politicians have clearly violated the Constitution and should step down, regardless of one’s opinion on the morality of the law.

There remains a large amount of uncertainty regarding the dual-nationality crisis. Despite Section 44(i) affecting several seemingly innocent victims, it is unlikely to be changed because of the sheer difficulty involved in altering the Australian Constitution. For the Constitution to be amended, the federal government must pass an amendment as a bill, which must then be sent to the governor-general. If approved, there occurs a national referendum, wherein a majority of Australians must approve the change, in addition to a majority of people in at least four (of six) states. To put this difficulty in perspective, of the forty-four referendum proposals, only eight, all of which were minor, have succeeded.

While the Senate agreed to create a citizenship register requiring senators and MPs to provide information about their citizenship and background, there are at least six more politicians under a cloud of controversy regarding citizenship issues (Labor's Justine Keay, Josh Wilson, Katy Gallagher, David Feeney, and Susan Lamb, along with Rebekha Sharkie of the NXT). These six politicians all claim to have submitted their renunciations of foreign citizenships before the date of nominations, but the confirmations for these dates were after the deadline. Though their cases will go to the High Court, Keay, Wilson, Gallagher, and Sharkie should be free from punishment as long as the UK’s Home Office confirms that their applications were submitted on time. The cases of Feeney and Lamb, on the other hand, are much more complicated. There currently seems to be no evidence that Feeney ever submitted the required documents, while Lamb’s case rests on whether or not the High Court concludes that she took all reasonable steps to renounce her foreign citizenships. If found guilty by the High Court, these disqualifications would have a disastrous effect on Labor’s representation in Parliament.

Despite this potential disaster, some of the disqualified politicians have already returned to office after formally renouncing their foreign citizenships and rerunning for office, most notably Deputy Prime Minister Barnaby Joyce, who won a by-election in early December. These by-elections were particularly important for Prime Minister Turnbull, as his coalition was in serious danger of losing its control of the government.

Moving forward, the newly created citizenship register attempts to be the solution for preventing future dual-citizenship issues. However, as Australia’s immigrant population only continues to grow, this confusing and tedious situation will only become more prevalent as more and more foreign-born citizens attempt to run for office. Additionally, the immigrant population simply cannot be properly represented in Parliament if representatives must renounce all ties to other countries.

There could be more cases of representatives referring their citizenship complications to the High Court before Parliament rises, but the most likely scenario is that representatives who are uncertain about their dual-citizenship status will await the court's decision on the pre-existing cases. Therefore, Australia must hold its breath until Parliament reconvenes. Until then, what has been dubbed “the world’s most ridiculous Constitutional crisis” remains a threat.

Matthias Sheppard is a Contributing Writer for The Gate. The image featured in this article is licensed under the Creative Commons and can be found here.

Matthias Sheppard


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