- In 2017, it was discovered that various federal Australian politicians were in possible breach of section 44(i) of the Constitution. This was because they appeared to be dual citizens.
- These politicians were:
- Matt Canavan (Italian citizenship);
- Barnaby Joyce (New Zealand citizenship);
- Larissa Waters (Canadian citizenship);
- Scott Ludlam (New Zealand citizenship);
- Fiona Nash (British citizenship);
- Malcolm Roberts (British citizenship); and
- Nick Xenophon (British Overseas citizenship).
- Section 44(i) prevents a person from being a senator or a member of the House of Representatives if they hold a dual citizenship.
- As per Sykes v Cleary, a person must take “all reasonable steps” to renounce their foreign citizenship prior to running for office, otherwise they would be disqualified from sitting as a senator or member.
- The “Citizenship Seven”, as the politicians came to be known, were referred to the High Court which was sitting in its position as the Court of Disputed Returns.
- Were the Citizenship Seven ineligible to sit as senators/members?
- In an unanimous judgment, the High Court held that section 44(i) of the Constitution should be interpreted as to its “ordinary and natural” meaning.
- The High Court followed the reasoning of Sykes v Cleary, restating that a person was required to take all “reasonable steps” that are required to renounce their citizenship.
- The High Court ruled that the fact of citizenship was disqualifying, regardless of whether the person actually knew of the citizenship or engaged in any voluntary act of its acquisition. The Court stated that to hold otherwise would introduce an element of subjectivity that “would be inimical to the stability of representative government“.
- The Court found that Joyce, Ludlam, Nash, Roberts and Waters were ineligible.
- Canavan was eligible because he was not a citizen under Italian law.
- Xenophon was eligible because British Overseas citizenship was a lesser form of citizenship which only gave very limited rights and did not permit entry to, or a right to reside in, the United Kingdom.
“A person who, at the time that he or she nominates for election, retains the status of subject or citizen of a foreign power will be disqualified by reason of s 44(i), except where the operation of the foreign law is contrary to the constitutional imperative that an Australian citizen not be irremediably prevented by foreign law from participation in representative government. Where it can be demonstrated that the person has taken all steps that are reasonably required by the foreign law to renounce his or her citizenship and within his or her power, the constitutional imperative is engaged.”
(Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon, Edelman JJ at )
The full text is available here:
-- Download Re Canavan; Re Ludlam; Re Waters; Re Roberts [No 2]; Re Joyce; Re Nash; Re Xenophon  HCA 45 as PDF --
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