One of the more consequential political stories that dominated headlines in 2017 was the prolonged dual citizenship crisis upending the Commonwealth parliament. The complete paralysis that has resulted is nothing short of a humiliating scandal. However, the larger scandal is the High Court’s excessively broad interpretation of section 44 of the Australian Constitution that has created this debacle, rejecting the original intention of the founding fathers in the process. It demonstrates the need for conservatives to revive the doctrine of constitutional originalism.
It all began in 2011, when Perth-based lawyer John Cameron dug into the citizenship details of then Prime Minister Julia Gillard and opposition leader Tony Abbott. It was not until June 2017 that Cameron ultimately found proof of a parliamentarian with dual citizenship, when the New Zealand Internal Affairs Department confirmed Greens senator Scott Ludlam was in fact a citizen of New Zealand through birth.
Ludlam’s resignation in July was followed by similar discoveries or allegations of foreign loyalties of Greens senator Larissa Waters, Nationals senators Matt Canavan and Fiona Nash, One Nation senator Malcolm Roberts, senator Nick Xenophon and Deputy Prime Minister Barnaby Joyce.
The High Court ruled in October that, with the exception of Senator Canavan, irrespective of whether the parliamentarians were aware of their citizenship status, six of the Citizenship 7 were ineligible to have been elected as a consequence of failing to take ‘all steps that are reasonably required’ to renounce their foreign citizenships.
The Constitutional provision in question, section 44(i), disqualifies from federal parliament any person 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.
The requirement that those who serve in parliament are free of foreign loyalties is entirely proper. However, the High Court’s interpretation of foreign allegiance as established by the activist court under Chief Justice Anthony Mason in the 1992 case of Sykes v Cleary is a departure from common sense and sound constitutional philosophy.
The consequence of the court’s reasoning means that a person can be a subject of a foreign power without their knowledge. It also means that the laws of a foreign country have constitutional repercussions in Australia. At its most absurd, this means that the Australian-born Mr Joyce is considered a New Zealand citizen under the Constitution, despite his New Zealand-born father having moved to Australia prior to the introduction of retrospective New Zealand legislation establishing the dominion’s own citizenship.
Apologists for the High Court’s decision have celebrated the literal interpretation. And it’s true: from a modern perspective, section 44 can be construed broadly. However, the danger of literalism is that the meanings of words change over time. Sometimes, as is the case with citizenship, that change can be significant.
Because of this, the only sound interpretative method is to consider the words of the Constitution as they were understood at the time they were introduced. This method of interpretation, broadly described as ‘originalism’, involves two lines of inquiry. Both would confirm that in the case of section 44, the original intention and sensible operation of section 44 is far more limited than the High Court has found.
The first line of inquiry is to consider how the words of section 44 were understood by wider society at the time they were introduced. In particular, the concept of citizenship itself today bears little resemblance to citizenship at the time of federation. Today citizenships are handed out liberally by most countries, with no deeper meaning or expectations placed on the recipients. This is a remarkable change from a century ago, where national allegiance carried serious weight and where citizenship could be obtained primarily in only two ways.
As understood in 1901, a person born in a country became a natural-born subject of that country, while a foreign-born person could become a naturalised subject, automatically discarding the previous allegiance in the process. Essentially, it was not possible to be a subject of two sovereigns, making the modern concept of dual-citizenship just that—a modern invention. Moreover, obtaining a foreign citizenship at the time of the Constitution’s drafting required an obvious positive act, as well as a repudiation of the domestic allegiance. Under this reasoning, the disqualified parliamentarians could not be regarded as having foreign loyalties as no foreign allegiances
were given and no foreign citizenship was sought.
This requirement for an active element is reflected in the debates surrounding the drafting of the Australian Constitution. At the National Australasian Convention in Sydney in 1891, the draft bill to constitute the Commonwealth included clause 46, the precursor to section 44, which disqualified any person:
who has taken an oath or made a declaration or acknowledgment of allegiance, obedience, or adherence to a Foreign Power, or has done any act whereby he has become a subject or citizen or entitled to the rights or privileges of a subject or citizen of a Foreign Power… until the disability is removed by a grant of a discharge… or otherwise.
The draft provision was adopted at later constitutional conventions in Sydney and Adelaide in 1897, both with little debate. It was revised before taking its final form at the Melbourne Australasian Federal Convention in 1898, where the official records of the debate show that Edmund Barton, the chairman of the drafting sub-committee, noted of a series of drafting amendments that ‘no liberties have been taken with the work of the committee… not one of these amendments alters the sense, except where the Convention has practically directed it to be done’. No such direction was given in relation to the disqualification provision. Days later during the same convention, Isaac Isaacs congratulated the drafting committee for its ‘very good work… in the attainment of brevity.’
It is not surprising that the rewording was not a contentious move. Given the wider understanding of citizenship at the time, it is unlikely the convention delegates could have conceived of just how radically the meaning of citizenship would be altered in a relatively short period of time.
At the very least, it is clear from the convention debates that the passive reception of foreign citizenship of the type that caught the Citizenship 7 was not intended to be caught by the Constitution’s disqualification provision.
To read the words of the Constitution outside of its original intent and meaning requires the judge to assess how the words are understood at the time of interpretation. And when words are implicitly updated to align with the changing values, it is indistinct from living tree constitutionalism, a troubling doctrine of constitutional interpretation where the constitution is seen as being organic. In other words, it is a form of judicial activism that gives the Courts the power to change the meaning of the Constitution through its judgments.
The repercussions of the High Court’s decision are likely to be felt for some time. In November following the High Court’s judgement, Liberal MP John Alexander and senator Stephen Parry, senator Jacquie Lambie, Xenophon team senator Skye Kakoschke-Moore each resigned. The designated replacement for Fiona Nash, Hollie Hughes, was also deemed ineligible to take a seat in the Senate. By-elections have been held to re-elect Barnaby Joyce and John Alexander, while ALP senator Katy Gallagher has been referred to the High Court for being a dual citizen until after the 2016 election. The Australian cast doubt on the eligibility of energy minister Josh Frydenberg on 3 November, as his mother was born in a region of Europe that may now be subject to Hungarian citizenship law.
This fiasco is unlikely to end so long as the High Court’s judgment is allowed to stand. Indeed, the High Court has effectively assumed for the judiciary the power to arbitrarily disqualify members and candidates for parliament without the original approval of the Constitution.
This is a problem that goes to the heart of constitutional jurisprudence in Australia. The solution is for conservatives to resurrect the doctrine of originalism.