Written more than a century ago, the Australian Constitution has always had some fairly clear ideas about who can, and cannot, be in the Federal Parliament. The latest confusion revolves around one of the disqualification criteria: Section 44(i).
The rationale is an easy one: that a person cannot serve two masters. A member of the Australian parliament who votes on the laws that govern foreign affairs, spending, the military and the like cannot owe allegiance to another nation, and risk being under their control. This resulted in the wording of Section 44(i):
Any person who:
(i) 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 of sitting as a senator or a member of the House of Representatives.
So, there are two ways to fall foul - being a person “under any acknowledgement of allegiance, obedience, or adherence to a foreign power”, or being “a subject or citizen… of a foreign power.”
The first one is generally not a problem. Any naturalised Australian citizen – a person not an Australian citizen by birth – is required to swear allegiance to Australia and to forego any allegiance to any other nation. The second, however, is where a number of members of parliament currently have questions to answer: are they citizens of another country?
But the matter does not stop there. Australia does not get to decide whether a person holds citizenship in another country: that’s for the other country to decide, in selecting their criteria for what is a Citizen. The High Court has looked at this matter before – in the 1992 case of Sykes v Cleary.
Sykes v Cleary – The Background
In 1992, after losing his place as Prime Minister, Bob Hawke resigned from parliament and a by-election was called for his seat in the House of Representatives. Philip Cleary, a local football personality, was elected as the independent Member for Wills in the House of Representatives, with more than 21 000 first preference votes.
However, fellow candidate Ian Sykes (364 first preference votes) challenged the by-election in the High Court on a number of grounds: firstly, that Cleary was on unpaid leave from the Victorian Education Department and was a paid employee of the government at the time of election (another area of disqualification); and that two of the other candidates were dual citizens: one of Switzerland, the other of Greece.
Incidentally, these three people were the three highest-polling in the election: Cleary, then Kardamitsis, then Delacretaz.
The Australian-Greek dual citizen, Bill Kardamitsis, was born in Greece and had migrated to Australia at age 17. He became a citizen in 1975, at age 23. A Coburg councillor and a Victorian Justice of the Peace, he had sworn two years before the by-election: “I swear by Almighty God that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth II, Her Heirs and Successors, lawful Sovereigns of the United Kingdom and this State of Victoria.”
Similarly, Swiss-Australian dual citizen John Delacretaz had moved to Australia when 28 years old, became a citizen when he was 36, and had been so for 30 years.
Both men had sworn their allegiance when they became citizens – words to the effect of:
"be faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second, her heirs and successors according to law" and "faithfully (to) observe the laws of Australia and fulfil (his) duties as an Australian Citizen".
However, neither had taken any step before their nomination as a candidate to get rid of their foreign citizenships.
Sykes v Cleary – The Ruling
The matter came before the full High Court bench, who ruled that all three candidates – Cleary, Kardamitsis and Delacretaz – were not eligible.
The critical part of the ruling for our purposes is that the Court recognised Australians can be dual citizens. That isn’t affected by our Constitution (which doesn’t even refer to Australian Citizenship). An established part of international law is: Country X gets to choose the criteria for whether a person is a citizen of X, and no other country has that right.
The question, in the view of the High Court, was whether the candidate done enough to have Country X set aside their citizenship before nominating for parliament. This did not necessarily mean that they had to have stopped being a dual citizen: some foreign countries may refuse to allow it to happen. But had the candidate done everything they reasonably could to have Country X end their old citizenship?
This led to a point of disagreement. Was swearing your allegiance to Australia alone enough to let a person claim that they had renounced their connection to the foreign country? The High Court was split on this.
Two judges – (later Governor-General) Justice William Deane and Justice Mary Gaudron – dissented on this. They took the view that by Kardamitsis and Delacretaz's long service as Australian citizens and having sworn repeatedly their allegiance to Australia, both men had done enough.
“By formally renouncing all other allegiance as a preliminary to naturalization and as part of the naturalization ceremony, [Delacretaz] must be held to have taken reasonable steps to renounce his Swiss citizenship.” (Gaudron J at paragraph 24).
However, the majority decision of the Court was that active steps needed to be taken to renounce their foreign citizenship. In this case, given that both Kardamitsis and Delacretaz had done nothing to have the foreign country end their citizenship, both were ineligible. The by-election was declared void due to all three candidates not complying with Section 44.
(After Note: When the matter was sent back to parliament, they chose not to waste money on another by-election, as the general election was only a few months away. Cleary, having cleared up his legal issues, won the seat yet again at the general election and served until 1996.)
What comes next?
Each case will be interpreted on its facts: did the candidate do enough to renounce their foreign citizenship before they nominated for parliament? Especially given the ruling in Sykes v Cleary – is it any defence to claim that you did not know you’re a dual citizen? Perhaps not.
At the time of writing, 5 members of parliament have been referred to the High Court for consideration: Greens ex-Senators Scott Ludlam and Larissa Waters; One Nation Senator Malcolm Roberts; ex-cabinet minister Senator Matthew Canavan; and now Deputy Prime Minister Barnaby Joyce.
All are listed for a first court date on Thursday 24 August 2017 – in the High Court's Brisbane courtroom, while the Canberra courthouse is under repairs for the next two months.
Joseph Petersen is a barrister and solicitor practicing in litigation in northern Tasmania. This blog entry does not constitute legal advice and is provided for information purposes only. This article has been subsequently updated to correct some grammatical matters.