Dual citizenship and Parliament

A Parliamentary Committee I chaired in 1997 examined s 44 of the Australian Constitution concerning the qualification of Members of Parliament and recommended that it be changed.

The Committee heard from a range of experts and members of the public.

It noted that the Constitutional provisions were expressed in archaic language which had the potential to discriminate unfairly and should be deleted and replaced by a new provision. The 1988 Constitutional Commission also recommended that s 44(i) of the Constitution be deleted.

When Australia was settled, it became a British colony. Historically, the people of Britain were not citizens, but subjects of the King or Queen.

Australian citizenship was first introduced in the Nationality and Citizenship Act 1948. This Act provided for the acquisition, loss and resumption of Australian citizenship. However, until 1986, Australian citizens continued to be British subjects. The 1986 Citizenship Act removed the references to British subjects and provided that citizenship became the description of membership of the Australian nation.

Section 44(i) of the Constitution provides: “Any person who is 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 sitting as a senator or a member of the House of Representatives.”

The provision operates in two ways. First, it disqualifies Australian citizens who by their actions have clearly transferred their allegiance and loyalty to a foreign country. Such allegiance would usually be evidenced by the adoption of a foreign citizenship. It may also include the de facto transfer of loyalty, for example, by accepting a foreign passport, or serving in the armed forces of another country.

The second part of the provision disqualifies a person if on an objective test they are the subject or citizen or are entitled to the rights or privileges of a subject or citizen of a foreign power.

This issue was determined by the High Court in the case of Sykes v Cleary in 1992. The case concerned a challenge to candidates in the Wills by-election following the retirement of the former Prime Minister, Bob Hawke.

The Labor candidate Mr. Kardamitsis, and the Liberal candidate, Mr Delacretaz, were challenged as being ineligible under s 44 because they held dual citizenship.

Mr. Delacretaz was born in Switzerland and therefore a Swiss citizen by birth. He migrated to Australia and became naturalised as an Australian. As part of the naturalisation process he renounced all allegiance to any Sovereign or State of whom or of which he was a subject or citizen and further took an oath of allegiance to the Queen, her heirs and successors and also undertook to faithfully observe the laws of Australia and to fulfil his duties as an Australian citizen.

Under Swiss law, a Swiss citizen will be released from citizenship upon his or her demand if that person has no residence in Switzerland and has acquired another nationality. Mr Delacretaz made no such demand and accordingly at all times under the law of Switzerland was entitled to a Swiss passport and to enter Switzerland without restriction and to reside there.

Mr Karadmitsis was born in Greece and was a Greek citizen by birth. He migrated to Australian and became naturalised. He too renounced allegiance to any foreign power and swore allegiance to the Queen, her heirs and successors.

He did not make any application to the Government of Greece to discharge his Greek nationality although he was entitled under Greek law to have it discharged because he had acquired the nationality of another country.

The High Court accepted that the common law of Australia recognised dual nationality and that Australians could hold dual nationality.

The majority of the Court held that because neither Mr Delacretaz nor Mr Kardamitsis had applied to the governments of their former countries to renounce their citizenship, they had not taken reasonable steps, and therefore were disqualified by s 44 of the Constitution from standing for Parliament.

The Court noted that the reason behind s 44 was “that members of Parliament did not have a split allegiance and were not, as far as possible, subject to any improper influence from foreign governments.”

According to the judgment, a person must take positive and pro-active steps to break any perceived allegiance to another nation. It is not sufficient to merely participate in a naturalisation ceremony in Australia.

The Howard government supported the Committee’s 1997 recommendations, but no action was taken. In light of recent events, the recommendations should be revisited. While there no accurate statistics, it has been estimated that as many as one in six Australians have dual citizenship.

(Originally published in The Australian, August 3, 2017)