BY TONY BLACKSHIELD

Senator Nick Xenophon is OK. Although it employs the word “Citizen”, his status as a “British Overseas Citizen” confers such limited rights and privileges that it does not amount to “citizenship”.

Senator Matt Canavan is OK because the High Court (as the Court of Disputed Returns) has given him the benefit of the doubt.

The other five persons referred to the Court were not validly elected in 2016 because, at the time of nomination, each was a citizen of a foreign power. Barnaby Joyce, the Leader of the National Party and erstwhile Deputy Prime Minister, was a citizen of New Zealand, as was Scott Ludlam. Larissa Waters was a citizen of Canada. Fiona Nash and Malcolm Roberts were British by descent.

In a single joint judgment by a unanimous Court, the decision in Sykes v Cleary (cited in 32 of the 75 footnotes to the judgment) is emphatically reaffirmed. Sue v Hill is mentioned only once, in paragraph [38], and then only because it confirms the approach that was taken in Sykes v Cleary.

Categories of disqualification under s 44(i)

Section 44(i) of the Constitution provides:

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.

In Sykes v Cleary Justice Brennan read s 44(i) of the Constitution as creating three categories of disqualification, applying respectively to a person who “is under any acknowledgment of allegiance, obedience, or adherence to a foreign power”, or who “is a subject or a citizen … of a foreign power”, or who is “entitled to the rights or privileges” of such a subject or citizen. Thus construed, each category stands alone: any one of them is a sufficient reason for disqualification, and must operate without qualification according to its terms. Read according to the noscitur a sociis rule (“by their friends ye shall know them”), any one of the three might conceivably be modified by overlap from one or both of the others. Justice Deane seemed to have such an overlap in mind when he argued in Sykes v Cleary that “the element of acceptance or at least acquiescence” implicit in the first category could be read into the second category as well. That idea has now been firmly rejected.

In any event, the new judgment is inclined to accept the suggestion by the amicus in the proceeding, Geoffrey Kennett SC, that s 44(i) should be read as creating two categories rather than three, with the citizenship clause and the “rights and privileges” clause lumped together in a single category. This reading is said to be favoured by indicia of grammar and punctuation: the word “is” occurs only once to serve both the citizenship clause and the “rights and privileges” clause, and the word “or” when it comes after the “acknowledgment” clause is preceded by a comma, but when it comes between citizenship and “rights and privileges” is not. In fact, as a matter of close analysis, the disambiguating comma does seem to be decisive, requiring the symbolic representation: “x + (y + z)”. This reading serves not only to sharpen a sense of deliberate separation from the acknowledgment clause, but to make it more plausible to see “citizenship” and “rights and privileges” as aspects of a single conception (to the benefit of Senator Xenophon).

A “mental element”

Relying on Justice Deane’s suggestion that citizenship has a “mental element”, the Solicitor-General, Stephen Donaghue QC, had argued (on behalf of the Attorney-General) that foreign citizenship should be a disqualification only for someone who was aware of it and had voluntarily obtained or retained it. Similarly, Brett Walker QC (for Barnaby Joyce and Fiona Nash) had argued that the disqualification should operate only when citizenship was “chosen or maintained” after knowledge, and Brian Walters QC (appearing for Ludlam and Waters, and himself a former parliamentary candidate for The Greens), had argued that anyone “put on notice” of possible foreign citizenship must thereupon make “prompt proper inquiries”. But once the Court had reaffirmed that the words “is … a citizen … of a foreign power” are still to be read in their “ordinary and natural meaning”, all these suggestions were doomed to fail.

In any event, these arguments had opened up questions of the need for selection and differentiation among different degrees of knowledge and diligence, ranging from “wilful blindness” to “constructive notice”, which (as three days of hearings on 10-12 October made disconcertingly clear) were capable of leading only to endless “uncertainty and instability”:

To introduce an issue as to the extent of the knowledge obtained by a candidate and the extent of the candidate’s efforts in that regard is to open up conceptual and practical uncertainties … [T]he state of a person’s knowledge can be conceived of as a spectrum that ranges from the faintest inkling through to other states of mind such as suspicion, reasonable belief and moral certainty to absolute certainty. If one seeks to determine the point on this spectrum at which knowledge is sufficient …, one finds that [the] provisions offer no guidance.

In the course of argument, the uncertainties extended not only to “the difficulties of proving or disproving a person’s mind”, but to doubts as to whether Sykes v Cleary might need to be further modified, or even perhaps overruled. In the end, the cumulative effect of the chaos of confusing possibilities became the most powerful reason for adherence to “ordinary and natural meaning”. The Court must have turned with relief from these arguments – all leading into an unmanageable quagmire – to the “common sense” meaning of the words.

Interpreting history

The principal argument for a departure from that meaning had been based upon legislative history, and drew heavily on John Williams’ book The Australian Constitution: A Documentary History (which, of course, was not available when Sykes v Cleary was decided). Briefly, the original draft of what became s 44(i) had been modelled on a series of precedents, from the United Kingdom and other parts of the Empire, all of which had predicated disqualification on some positive act of acknowledgment or acceptance of foreign citizenship. The draft that went to the Adelaide session of the Australasian Federal Convention in 1897 (“has done any act whereby he has become a subject or citizen … of a Foreign Power”) was still based on those precedents. The final wording (“is a subject or a citizen … of a foreign power”) was substituted at the Melbourne session in 1898 by the drafting committee, and when it was reported back to the full Convention as one of a long list of other changes, it was treated merely as a drafting amendment intended to make no change to the meaning. It was never considered independently.

The argument was superficially seductive, but the High Court rejected it. The drafting history showed only that the final acceptance of s 44(i) in its present form had been seen as “uncontroversial”; it did not show that the ground for disqualification had been “exhaustively identified” by the previous language. Nor did the drafting history show any intention “to cleave particularly closely to [the earlier] precedents”.

In fact the framers were deliberately departing from those precedents. Unlike any of the earlier schemes developed by other British parliaments, the Australian Constitution was to make two provisions: one applying when a ground for disqualification arises after a person has been validly elected (now s 45), and one applying when the ground for disqualification exists at the time of election (now s 44). With that contrast in mind, it made perfect sense to express s 45 as applying to a person who “becomes subject to” a ground for disqualification (after election), and s 44 as applying to a person who “is” subject to such a ground (at the time of election).

The relevance of section 34

The conclusion was also supported by reference to s 34 of the Constitution, which – albeit only “[u]ntil the Parliament otherwise provides” – had set out “the qualifications of a member of the House of Representatives” (and thus by reason of s 16 the qualifications of a senator as well). That section was much discussed in the course of argument because, uniquely, its requirement that a candidate must be “a subject of the Queen” was said to operate in one way for a subject who was “natural-born”, and in a different way for one who had been “naturalized” for at least five years. Justice Deane’s suggestion in Sykes v Cleary of a general principle of “acceptance or at least acquiescence” had also to work differently for Australians who were “natural-born” and those who were “naturalized”; and the presence of such a distinction in s 34 was seen either as a justification for Justice Deane’s proposal, or as an example of the kind of discrimination between “natural-born” and “naturalized” Australians which a process of constitutional reasoning should at all costs avoid. The fact that in its practical operation the Solicitor-General’s argument would necessarily rely on such a discrimination was one of the factors finally weighing against it.

But the Court also used s 34 as a way of giving positive support to its reading of s 44(i). To be qualified for election under s 34(ii), one “must be a subject of the Queen”. But when this was read along with s 6 of the Naturalization Act 1870 (Imp), it appeared that any British subject “who has at any time … voluntarily become naturalized” in a foreign state would be “deemed to have ceased to be a British subject” and would be “regarded as an alien”. Thus any person who had “voluntarily become” a citizen of a foreign power could not be qualified under s 34(ii); and if the citizenship clause in s 44(i) were read as referring only to such persons, it would simply reduplicate the position under s 34(ii). In order to save it from being simply redundant, it must be given a wider meaning.

To use such an argument at a time when the status of “British subject” has become a reason for disqualification rather than qualification, and when in any event s 34 of the Constitution has been displaced by s 163 of the Commonwealth Electoral Act 1918, seems overly contrived. But when s 44 is read together with s 45, their contrasting use of relational processes – “becomes” in s 45 but “is” in s 44(i) – undoubtedly makes sense.

The importance of representative government

Nine days before the Court’s decision in the citizenship proceedings, in a case concerning the implied freedom of political communication, several judgments had stressed the vital importance of the constitutional system of representative and responsible government; and it proved to be important in the citizenship decision too. In the first place, the “stability” of representative government requires that so far as possible elections should be conducted with certainty; and that was seen as a significant reason for ensuring that the grounds of disqualification in s 44 are given a clear, uncomplicated and easily applicable meaning. It certainly became a significant reason to recoil from the uncertainties generated by counsel’s attempts to establish “a mental element”, since proliferation of questions with no clear answer would “undermine stable representative government”.

Justice Nettle had made a similar point (at paragraph [57]) in the recent case of Rodney Culleton in relation to s 44(ii), as had Justice Gageler (at paragraph [97]) in the case of Bob Day in relation to s 44(v). In fact it is a double point: the emphasis on “stability” evokes the need to ensure that the Parliament is composed in a steady and predictable way, not subject to unexpected upheavals (like those which have now occurred), while the emphasis on “certainty” evokes the idea that, for Parliament to be truly representative, it must be open to as many Australians as possible. And while this may be an argument for giving the provisions of s 44 a narrow meaning, it is also an argument for a certain meaning. As Justice Deane put it in Sykes v Cleary:

What s 44 does is to impose an overriding disqualification of any person who comes within its terms regardless of whether the Parliament thinks … that that disqualification is unjustified. Such a overriding disqualification provision should, in my view, be construed as depriving a citizen of the democratic right to seek to participate directly in the deliberations and decisions of the national Parliament only to the extent that its words clearly and unambiguously require.

In the second place, this double need to protect institutional stability, while also providing clear avenues for democratic participation, serves also to set a significant limit on the extent to which foreign citizenship can be determined solely by recourse to the relevant foreign law. Sykes v Cleary had made it clear that, consistently both with international law and with obvious logic, a question of citizenship is determined primarily by the law of the country concerned, but also that, in the application of s 44(i), that determination might need to be modified both by general considerations of public policy, and by the operation of the Australian Constitution itself. The judgments in Sykes v Cleary had offered only two specific examples: the hypothetical one that a mischievous or malignant foreign regime could not be allowed to confer citizenship on all members of the federal Parliament, thus clearing it out entirely, and the practical one that where foreign law makes renunciation of citizenship impossible, or unreasonably difficult, a person who has taken “all reasonable steps” for renunciation will not be disqualified. The new judgment offers only one more specific example, again hypothetical: if a foreign country required that renunciation of its citizenship must be carried out within its own territory, an Australian citizen might be entitled to ignore the requirement “if … presence within that territory could involve risks to persons or property”.

In the course of argument there had been much discussion of “exorbitant” foreign claims to extended citizenship: Italian law, with its claim to confer “indefinite” citizenship by descent reaching back over many generations, was given as an example. In the final judgment the concept of “exorbitancy” was not referred to, but the fact that Italian citizenship by descent might reach back “indefinitely” was used as an additional reason why Senator Canavan should be allowed to scrape through.

The important point is that, in this latest judgment, these possible limits on automatic acceptance of foreign citizenship laws are treated as responses to “the constitutional imperative” that deference to foreign laws should not be allowed “to undermine the system of representative and responsible government established under the Constitution”:

[Australian citizens] have the entitlement to participate in the representative government which the Constitution establishes …. The purpose of s 44(i) neither requires nor allows the denial by foreign law of that entitlement.

Thus representative government not only requires a consistent resort to “plain meaning”; it also sets the limits of acceptable deference to foreign citizenship laws.

Barnaby Joyce, Senators Ludlam, Waters, Nash and Roberts

The disqualifications of Barnaby Joyce and of Senators Ludlam, Waters and Nash need no further explanation. Once the literal meaning of s 44(i) was confirmed, the results were inevitable. The same would be true of Senator Roberts were it not for the need for his own apparently muddled understandings to be clarified by the findings of Justice Keane in his judgment on 22 September. That judgment concluded that despite his “tenacious advocacy” of his “highly subjective (and objectively untenable) view of things”:

Senator Roberts’ “position” was not supported in any significant particular by any documentation contemporaneous with critical events, and his attempts to reconcile … [his own written statements] with his own evidence to contrary effect were speculative or unrealistic … [H]is claim to be, and always to have been, an Australian and only an Australian … equates feelings of Australian self-identification with citizenship, and so confuses notions of how a person sees oneself with an understanding of how one’s national community sees an individual who claims to be legally entitled to be accepted as a member of that community.

The conclusions that Senators Xenophon and Canavan were not disqualified by s 44(i) need somewhat fuller attention.

Senator Xenophon

In Xenophon’s case, because his father was born in Cyprus when it was still a British possession, both he and his father were affected by later changes in British citizenship law. The end result was that, under the British Nationality Act 1981, both of them were given the status of “British Overseas Citizen”. But, despite the use of the word “Citizen”, this is only “a residuary form of nationality”: it does not confer the right to enter the United Kingdom, nor to reside there. Accordingly, his counsel had argued that he does not have the “irreducible minimum” of rights and privileges that constitute a necessary component of “citizenship”; and, without adopting that language, the High Court appears to have accepted the argument.

The Court also noted that Xenophon had never sworn any oath of allegiance to the Queen in her capacity as Queen of the United Kingdom, and could never have been required to do so. The Court appeared to regard the absence of such a requirement as “critically” important, though whether this is so may be doubtful.

Senator Canavan

As for Senator Canavan, he survived in part because the apparent factual basis for treating him as an Italian citizen kept changing.

Initially it was thought that the problem arose because in June 2006 his mother (an Australian citizen of Italian descent) had applied for registration of Italian citizenship for herself and perhaps for her son as well.

Later it appeared that the problem was due entirely to changes in Italian law. Originally, under law number 555 of 13 June 1912 (“On Italian Citizenship”), Italian citizenship by descent was acquired at birth, but only through the male line. But in 1948 Article 3 of the post-war Constitution of Italy affirmed equality before the law “without distinction of sex”, while Article 29 affirmed that “Matrimony is based on the moral and legal equality of the spouses”. On 28 January 1983 the Constitutional Court (in decision no 30 of 1983) held effectively that the transmission of Italian citizenship by birth was a constitutional right of women: to that extent the law of 1912 was unconstitutional. On 15 April 1983 the State Council determined that the Court’s decision was retroactive to 1 January 1948, when the Constitution came into force. On 27 April 1983, a new law (number 23 of 1983) granted automatic Italian citizenship to minor children with at least one parent holding Italian citizenship as at that date. On one view, the retroactive operation of the Constitutional Court’s decision was that, when Canavan was born in Queensland in 1980, he automatically acquired Italian citizenship by descent through his mother.

However, when the case was argued before the High Court on 11 October, it became clear that the events of 1983 might not have had that effect. (There were even suggestions, with no apparent foundation, that if the events did have such an effect they might have been unconstitutional.) Accordingly, the focus shifted back to Mrs Canavan’s application in 2006. It now appeared that she had not in fact sought Italian citizenship, but had only sought to be recorded on the Register of Italians Resident Abroad (Anagrafe degli Italiani Residenti all’Estero, abbreviated as AIRE). At most, it seemed that the administrative steps resulting from that application were no more than prerequisites to the activation of “potential” citizenship.

In the end the Court found that Italian citizenship had not been proven:

Senator Canavan has not applied for a declaration of Italian citizenship. On the evidence before the Court, one cannot be satisfied that Senator Canavan was a citizen of Italy. The concluding section of the joint report suggests that he was not. Given the potential for Italian citizenship by descent to extend indefinitely – generation after generation – into the public life of an adopted home, one can readily accept that the reasonable view of Italian law is that it requires the taking of … positive steps … as conditions precedent to citizenship.

Consequences of the decision

The immediate consequences of the High Court’s decision are a recount for the four Senate seats which were never validly filled; a by-election for the seat of New England (since the Court has repeatedly held that the recount procedures now routinely relied on for Senate vacancies cannot safely be applied to House of Representatives elections); and the temporary appointment as Acting Prime Minister of Julie Bishop, rather than the senior National Party member Nigel Scullion (who himself had narrowly escaped in 2003 from a challenge under s 44(v)). Beyond all this, the decision has led to a call for two further responses.

One is that there should now be an audit of all sitting members of Parliament, to determine once and for all whether any more of them fail to satisfy s 44. This is said to be appropriate because the Court’s decision on s 44(i), and presumably the earlier decisions in the Culleton case on s 44(ii) and the Day case on s 44(v), have made the relevant criteria clear. Yet, at least as to s 44(i), the decision has only reaffirmed what has always been understood to be its correct operation.

The other proposal is that steps should be taken for a referendum to rewrite s 44 in a manner both simpler and more appropriate to contemporary Australian conditions. That proposal is long overdue.

In 1975, amidst the parliamentary panic when the case of Senator Webster first alerted politicians to the existence of s 44, the leader of the Country Party, Doug Anthony, complained that “if the letter of the law as it is written in sections 44 and 45 of the Constitution were to be followed we would possible [sic] have a very thin parliament.” In 1999, when the House of Representatives rejected a Labor Party proposal to refer the case of Warren Entsch to the Court of Disputed Returns, Tony Abbott protested:

[I]f the opposition go down the track that they are proposing with their motion … there will be many members of this House who are in jeopardy. That is what the opposition is proposing to do; they are proposing to place many members of this House in jeopardy by their proposal to send this off to the High Court.

In 1981 the Senate Standing Committee on Legal and Constitutional Affairs, in a report on The Constitutional Qualifications of Members of Parliament, recommended that s 44 should be thoroughly rewritten: of its five paragraphs (i), (iv) and (v) should be entirely replaced, (ii) should be amended, and (iii) should be repealed altogether. In 1988 the Final Report of the Constitutional Commission made similar recommendations (in Chapter 4, Volume One). In 1996 the House of Representatives Standing Committee on Legal and Constitutional Affairs recommended that paragraphs (i) and (iv) be rewritten.

None of these reports or recommendations has ever been implemented.

In 1988 the High Court decided that Robert Wood was not validly elected to the Senate because he was a British citizen. The Court based its decision simply on s 163 of the Commonwealth Electoral Act, and found it “not necessary to determine” the questions arising under s 44(i). But it warned that these were “questions of great contemporary importance” which “must be left for another day”. The warning was clear and urgent. But once again the Parliament did nothing.

Bills for a referendum to amend s 44 were introduced by the Australian Democrats in 1985, 1989, 1992 and 2000, and by The Greens in 1998 and again in 2003. Only the last of these was ever put to a vote. In the Senate it failed by three votes. In any event it seemed destined for defeat in the House of Representatives.

In recent years Australians have been wont to complain of government inaction. But in this area, governmental failure to act on an obvious problem has persisted at least since 1975.

In any event, for all its immediate drama, the political turmoil surrounding the disqualification of members of Parliament is only a storm in a teacup. On 26 October – the day before the scheduled announcement of the High Court’s decision – the federal government announced its rejection of the plea for a representative body giving Australia’s Indigenous peoples a “Voice” to the Commonwealth Parliament. The announcement seemed deliberately timed to ensure that public reaction would be swamped in the media circus surrounding the citizenship issue. That announcement, and its cynical timing, are a greater affront to the ideals of representative and responsible government than any possible interpretation of section 44.

 Tony Blackshield is an Emeritus Professor of Law at Macquarie University, a Visiting Professorial Fellow at the University of New South Wales, and an Honorary Professor of the Indian Law Institute in New Delhi.

Suggested citation:  Tony Blackshield ‘Seven Little Australians‘ on AUSPUBLAW  (30 October 2017) <https://auspublaw.org/2017/10/seven-little-australians/>