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Published online by Cambridge University Press: 01 January 2025
In 2017, in Re Canavan, the High Court of Australia found five sitting Members of the Commonwealth Parliament to be citizens of a ‘foreign power’ and thus ineligible, under s 44(i) of the Constitution, to hold their seats. In 2018, in Re Gallagher, the High Court found that a Senator who had attempted unsuccessfully to renounce her British citizenship prior to her Senate candidature was similarly ineligible. In this article, we argue that the conclusion in Re Canavan was incorrect: that both the Court’s reasoning about the purpose of s 44(i)—to avoid ‘split allegiance’—and its methodology for determining foreign citizenship were inconsistent in their own right and also against its reasoning in Re Gallagher. We challenge the Court’s conflation of citizenship and allegiance with obedience to a state. We examine the rules of international law for identifying a person’s citizenship, as well as exceptions to these rules, including what came to be known as the ‘constitutional imperative’, which the Court held will exempt a foreign citizen from s 44(i) disqualification under certain circumstances. We conclude that the Court, in seeking to avoid ‘uncertainty and instability’ in its interpretation of s 44(i), did the opposite. Had it looked, instead, to the relevant foreign state for an authoritative determination of a person’s citizenship, confusion and uncertainty surrounding s 44(i) could have been avoided, and a democratic understanding of Australian citizenship could have been prioritised.
Research for this article was generously support by an Australian Research Council Discovery Early Career Researcher Award grant. My thanks to the participants in the Melbourne Legal Theory Workshop, The University of Melbourne, 3 May 2019; and the Edinburgh Centre for International and Global Law seminar, The University of Edinburgh, 10 May 2019, for valuable comments.
Research for this article was generously supported by an Australian Research Council Discovery Project grant and the invaluable research assistance of Kristin Macintosh.
1. Section 47 of the Constitution empowers the Parliament to resolve disputes about eligibility, and also to provide for an alternative mechanism for determination of disputed elections. The mechanism by which the cases on s 44(i) were heard is now contained in the Commonwealth Electoral Act 1918 (Cth) which provides for the referral to the High Court by the House of Parliament in which the question arises, of questions generated by the constitutional provisions for disqualification.
2. (2017) 263 CLR 284 (‘Re Canavan’).
3. (2018) 263 CLR 460.
4. Merran Hitchick and Andy Ball, ‘Australia’s Citizenship Scramble: The Full List of MPs and Senators Affected’, The Guardian (online), 9 May 2018 <https://www.theguardian.com/australia-news/ng-interactive/2017/dec/07/australias-citizenship-scramble-which-mps-are-safe-whos-out-and-who-doesnt-know>; see also Damon Muller, ‘Five Leave the Parliament’, Flagpost: Blog of the Parliamentary Library (Blog Post, 10 May 2018) <https://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/FlagPost/2018/May/Five_leave_the_Parliament>. For a detailed account of the period prior to Re Gallagher (n 3), see Tony Blackshield, ‘Comment: The Unfortunate Section Forty-Four’ (2018) 29(1) Public Law Review 3, 6–9.
5. Five candidates preselected by major parties withdrew prior to the date for close of nominations for the 2019 election because of apprehended difficulties with s 44(i). See Jeremy Gans, ‘Second-Class Surnames’, Inside Story (online), 26 April 2019 <https://insidestory.org.au/second-class-surnames/>.
6. Australian Constitution s 44(i). Section 45 of the Constitution is also relevant to the issues raised in the s 44(i) cases. Section 45 provides that if a Senator or Member of the House of Representatives ‘[b]ecomes subject to any of the disabilities mentioned in the last preceding section’, including 44(i), ‘his place shall thereupon become vacant’. See Re Nash [No 2] (2017) 263 CLR 443.
7. See Appendices in the Report of the Commonwealth Joint Standing Committee on Electoral Matters, Excluded: The Impact of Section 44 on Australian Democracy (Report, May 2018) <https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Electoral_Matters/Inquiry_into_matters_relating_to_Section_44_of_the_Constitution/Report_1> (‘Excluded’). See also Australian Constitutional Commission, Final Report of the Constitutional Commission (Report, June 1988) vol 1, ch 4.
8. To adopt the distinction between substance and process used in Graeme Orr, ‘Comment: Fertilising a Thicket: Section 44, MP Qualifications and the High Court’ (2018) 29(1) Public Law Review 17.
9. (1992) 176 CLR 77 (‘Sykes’). Section 44(i) has also been discussed in Nile v Wood (1987) 167 CLR 133; Sue v Hill (1999) 199 CLR 462; Re Patterson; Ex parte Taylor (2001) 207 CLR 391; Singh v Commonwealth (2004) 222 CLR 322.
10. It also considered s 44(iv), disqualification for holding an office of profit under the Crown.
11. James Massola and Amy Remeikis, ‘Turnbull Government Pushes High Court to Hear Citizenship Saga Within Four Weeks’, Canberra Times (online), 22 August 2017 <https://www.canberratimes.com.au/story/6029124/turnbull-government-pushes-high-court-to-hear-citizenship-saga-within-four-weeks/digital-subscription/>.
12. Re Canavan (n 2) 299 [19], 307 [48].
13. A 2018 Report of the Commonwealth Joint Standing Committee on Electoral Matters observed that ‘[p]roblems with the operation of s 44 have come to public attention over the past year as a result of the high number of citizenship issues dealt with by the High Court…In addition to the previously identified problems with s. 44, recent High Court decisions have also created new uncertainties and future opportunities to manipulate election results’: Excluded (n 7) x.
14. As at 30 June 2015, 28.2 per cent of Australia’s estimated resident population was born overseas (ABS 2016), a very high percentage compared with most other countries within the Organisation for Economic Cooperation and Development: Janet Phillips and Joanne Simon-Davies, ‘Migration to Australia: A Quick Guide to the Statistics’ (Research Paper, Parliamentary Library, Parliament of Australia, 18 January 2017) <https://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/rp1617/Quick_Guides/MigrationStatistics>. Overseas born does not equate with dual citizenship, and these statistics are for residents, not citizens, but in the absence of statistics on dual citizenship, it is one indicator of the potential extent of dual citizenship.
15. Alternative approaches to interpreting s 44(i) that are also consistent with High Court jurisprudence have been suggested in: Noa Bloch and Kim Rubenstein, ‘Reading Down Section 44(i) of the Australian Constitution as a Method of Affirming Australian Citizenship in the 21st Century’ (2018) 30 (Special Issue) Denning Law Journal 79; Bruce Dyer, ‘The Dual Citizen Ban—What Was Barton Thinking?’, AUSPUBLAW (Blog Post, 27 September 2019) <https://auspublaw.org/2019/09/the-dual-citizen-ban-what-was-barton-thinking?/>.
16. Our concern in this article is the establishment of foreign citizenship in the context of a s 44(i) challenge, specifically with reference to the ‘subject or citizen’ limb of the provision. Although the High Court in Re Canavan (n 2) merged this limb with the ‘entitled to the rights or privileges of a subject of a citizen of a foreign power’ limb, it did not consider the implications this might have with regard to an individual who, arguably, enjoys the rights and privileges of citizenship without, however, being a legal citizen of a foreign state. The latter question is discussed in Hussein Al Asedy and Lorraine Finlay, ‘But Wait…There’s More: The Ongoing Complexities of Section 44(i)’ (2019) 45(1) University of Western Australia Law Review 196.
17. Re Canavan (n 2).
18. See above (n 9).
19. Sykes (n 9).
20. The majority was composed of a lead plurality judgment by Mason CJ, Toohey and McHugh JJ, joined by Brennan and Dawson JJ as to the result. Deane and Gaudron JJ dissented, holding that the respondents’ renunciation of foreign citizenship in the oath taken on naturalisation sufficed to avoid disqualification under s 44(i).
21. Quoted by the Court in Re Canavan (n 2) 301 [26].
22. Ibid 309 [54]. The Court went on to elaborate ‘conceptual’ and ‘practical’ problems with any knowledge requirement. The first went to the nature and extent of knowledge required: 309–10 [55]–[57], the second included ‘difficulties of proving or disproving a person’s state of mind’: 310 [58].
23. Transcript of Proceedings, Re Canavan [2017] HCATrans 199, 43 [1770], and on numerous other occasions over the three days of hearing (the word ‘exorbitant’ was referenced approximately 80 times, with varying inflexions of meaning and application).
24. Re Canavan (n 2) 300–1 [24]–[26].
25. Ibid 300 [24], quoting Sykes (n 9) 107 (Mason CJ, Toohey and McHugh JJ). The full passage in Sykes reads: ‘that members of Parliament did not have split allegiance and were not, as far as possible, subject to any improper influence from foreign governments’. The Court in Re Canavan did not explain its omission of the second part of the quote and did not consider whether the mischief was split allegiance tout court or split allegiance that specifically attracted ‘improper influence’. The possibility that foreign allegiance might attract beneficial effects or ‘influence’ was not addressed.
26. It was to ensure that members of Parliament did not have split allegiance and were not, as far as possible, subject to any improper influence from foreign governments. Senate Standing Committee on Constitutional and Legal Affairs, Parliament of Australia, The Constitutional Qualifications of Members of Parliament (1981) 10 [2.14].
27. Re Canavan (n 2) 300 [24] quoting Sykes (n 9) 109 (Brennan J). The Court in Re Canavan, in the same paragraph, also quoted Deane J in Sykes: the ‘whole purpose’ of s 44(i) is to ‘prevent persons with foreign loyalties or obligations from being members of the Australian Parliament’ (n 9) 127.
28. Neither the parliamentary committee nor the High Court made reference to the Federal Convention Debates. Had the Court done so, it would have found little to enlighten. The only reference to the Debates in the judgment is indirect—noting that the ‘predecessors’ of ss 44(i) and 45(i) ‘came to be adopted without substantial debate’ in the draft Bill of 1891: Re Canavan (n 2) 301–2 [29].
29. See Helen Irving, ‘Constitutional Interpretation, the High Court and the Discipline of History’ (2013) 41(1) Federal Law Review 95.
30. Re Canavan (n 2) 301 [25].
31. Alfred M Boll, Multiple Nationality and International Law (Martinus Nijhoff Publishers, 2007). See especially Chapter 4, ‘Views and Treatment of Multiple Nationality in Historical Perspective and the Influence of Human Rights’.
32. Sykes (n 9) 109 (Brennan J).
33. For a resonant historical analysis of how obedience to the state featured in government policy and practice on allegiance, in the period between World War I and the early 1950s, see David Dutton, One of Us?: A Century of Australian Citizenship (UNSW Press, 2002) ch 6.
34. Sykes (n 9) 113–14 (Brennan J) (emphasis added).
35. Re Canavan (n 2) 309 [54] (emphasis added).
36. As stated by Brennan J in Sykes (n 9) 113–14; quoted in Re Canavan (n 2) 306 [45]; and in Re Gallagher (n 3) 474 [32].
37. Singh v Commonwealth (2004) 222 CLR 322; Koroitamana v Commonwealth (2006) 227 CLR 31.
38. Calvin v Smith (1608) 77 Eng Rep 377.
39. Sir John Quick and Sir Robert Garran, The Annotated Constitution of the Australian Commonwealth (Angus & Robertson, 1st ed, 1901) 491–2 [144].
40. Sykes (n 9) 109.
41. Ibid.
42. Ibid 110.
43. For an indication of this variety, see Ayelet Shachar et al (eds), The Oxford Handbook of Citizenship (Oxford University Press, 2017).
44. Re Canavan (n 2) 310 [57].
45. (1992) 177 CLR 106, 137.
46. Sykes (n 9) 105–6 citing R v Burgess; Ex parte Henry (1936) 55 CLR 608 for the common law rule.
47. Re Canavan (n 2) 304 [37].
48. Convention on Certain Questions Relating to the Conflict of Nationality Laws, opened for signature 12 April 1930, 179 LNTS 89 (entered into force 1 July 1937) (‘Hague Convention’).
49. Sykes (n 9) 106 (Mason CJ, Toohey and McHugh JJ).
50. Article 1 was cited by the International Court of Justice in the Nottebohm case, with no indication that it was restricted to particular international law: see Nottebohm (Liechtenstein v Guatemala) (Judgment) [1955] ICJ Rep 4, 23. On chapter 1 of the Convention more generally, see GR de Groot and OW Vonk, International Standards on Nationality Law: Texts, Cases and Materials (Wolf Legal Publishers, 2016) 87.
51. A prominent example of such a divergence was the British litigation that culminated in the decision of the United Kingdom Supreme Court in Pham v Secretary of State for the Home Department [2015] 1 WLR 1591. The British courts ultimately held that the applicant was a Vietnamese national, as a matter of Vietnamese nationality law, when this was denied by the Vietnamese authorities. This divergence may be an elementary aspect of conflict of laws. It nonetheless means that legal consequences follow from a court’s ascription of a foreign nationality, when that nationality is denied by the foreign state. This further complicates the idea of allegiance to a foreign power.
52. Re Canavan (n 2) 300 [24], quoting Sykes (n 9) 107 (Mason CJ, Toohey and McHugh JJ). See further above (n 25).
53. Further, ‘the available means of proof [of a person’s nationality]…generally consists of some type of documentary evidence accepted as probative of acquisition of nationality in a particular way’: Adam I Muchmore, ‘Passports and Nationality in International Law’ (2004) 10(2) UC Davis Journal of International Law & Policy 301, 315.
54. To reiterate, the particular issues raised here by state law becoming unmoored from its state arise in relation to the purpose of s 44(i). On the more general theme of ‘disembedded state law’ see Karen Knop, ‘State Law without Its State’ in Austin Sarat, Lawrence Douglas and Martha Merrill Umphrey (eds), Law Without Nations (Stanford University Press, 2010) 66.
55. Re Gallagher (n 3) 479 [51].
56. Note the Court’s acknowledgment in Re Gallagher of ‘differences of opinion expressed by the experts on British immigration law whom the parties had called as witnesses’: (n 3) 471 [19].
57. Re Canavan (n 2) 312 [67].
58. Ibid. Note that Laurie Fransman’s British Nationality Law (Bloomsbury, 3rd ed, 2011) is 1853 pages long. Additionally, there may be cases where the state in question refuses to recognise, withholds or manipulates evidence of an individual’s citizenship status. For a comparative discussion of examples of this nature see Benjamin N Lawrence and Jacqueline Stevens (eds), Citizenship in Question: Evidentiary Birthright and Statelessness (Duke University Press, 2017).
59. Cf Gans (n 5) for a critical response to this assumption.
60. Re Canavan (n 2) 310 [60]. This may be correct in the abstract—at least if it is assumed that ‘diligence’ is just a matter of application, and that the same quantum of diligence is available to all—but, in practice it has turned out to be far from the case. Among others interested in the issue, especially surrounding the case of Re Canavan, journalists with access to legal advice have conducted energetic campaigns of inquiry into the citizenship status of individual MPs or candidates. The Court’s admonition—that ‘nomination for election is manifestly an occasion for serious reflection on [the] question’ of citizenship—is scarcely helpful in this regard: Re Canavan (n 2) 310 [60].
61. Ibid 319 [97].
62. Except concerning Senator Roberts: Re Roberts (2017) 91 ALJR 1018.
63. Following the steps set out in a 1991 circular from the Italian Department of Foreign Affairs: Re Canavan (n 2) 316 [84].
64. Intriguingly, two months before Re Canavan was handed down, Senator Canavan, in the words of the Court, ‘attended the Italian Embassy in Canberra and formally renounced any Italian citizenship. The renunciation took effect from 8 August 2017’: Re Canavan (n 2) 315 [79]. There was no discussion by the Court of the significance of this act.
65. Re Canavan (n 2) 316–17 [85].
66. Ibid 317 [86].
67. When potential s 44(i) issues were raised with reference to the alleged Italian citizenship of the then Government Chief Whip Nola Marino, she responded: ‘The court [in Re Canavan] found it [Italian citizenship] is about registration not relationship’. She declared: ‘I am not registered’: see Katharine Murphy and Melissa Davey, ‘Citizenship Crisis: John Alexander Resigns and Triggers Byelection’, The Guardian: Australia edition (online), 11 November 2017 <https://www.theguardian.com/australia-news/2017/nov/11/citizenship-crisis-john-alexander-resigns-and-triggers-byelection>.
68. Re Canavan (n 2) 309–10 [56].
69. As to what might constitute an authoritative decision, our suggestion is the possession of documentation which, if produced at the point of entry to the relevant state, would be regarded by that state as establishing a right to enter (and remain) by virtue of being a citizen or national. An opinion offered by a member of the relevant consulate or embassy as to a person’s nationality status does not constitute an authoritative decision.
70. Re Canavan (n 2) 307 [48].
71. Re Gallagher (n 3).
72. Ibid. This unanimity took the form of a judgment of the plurality with two concurring judgments (by Gageler and Edelman JJ).
73. Ibid 477 [45]–[46]. There is an irony here, too, arising from the Court’s insistence that s 44(i) protects against foreign influence in the Australian Parliament: in ceding control over renunciation to the foreign state in question, the Court allows for that state to influence the pool of Australian candidates or MPs.
74. Sykes (n 9) 113.
75. Oppenheimer v Cattermole (Inspector of Taxes) [1976] AC 249, 277–8, 282–3 (‘Oppenheimer’).
76. Hague Convention (n 48).
77. Sykes (n 9) 135–6.
78. Ibid 113 (Brennan J) citing Oppenheimer (n 75) 277 (Lord Cross).
79. It is of relevance to our argument that mere advice on a person’s citizenship status does not provide certainty, to note that one of the authors of this article whose ancestry is relevantly analogous to Xenophon’s was advised by the British Home Office that a British Overseas Citizen cannot transmit BOC status to his or her children.
80. Re Canavan (n 2) 328 [131].
81. Oppenheimer (n 75).
82. The majority on this point comprised Lords Cross (the leading judgment), Hodson and Salmon. Lord Pearson in dissent on this point. Lord Hailsham stated that he would ‘prefer to express no concluded opinion’ on this point: Ibid 263. See also J G Merrills, ‘Oppenheimer v Cattermole—The Curtain Falls’ (1975) 24(4) International and Comparative Law Quarterly 617, 622–7.
83. Sykes (n 9) 112–13.
84. Ibid 113.
85. Ibid.
86. Ibid.
87. Ibid.
88. Re Canavan (n 2) 317 [86].
89. Ibid.
90. Keane J comments in the transcript on the exorbitant nature of citizenship that extends to the seventh generation: Transcript of Proceedings, Re Canavan (High Court of Australia, 199, 10 October 2017) 2827–37. See also: ‘Now, if one allows citizenship to pass by indefinite succession, one is going to have people engaging in genealogical witch-hunts which will occupy this Court every time there is an election’: Transcript of Proceedings, Re Canavan (High Court of Australia, 200, 11 October 2017) 4093–5 (Bennett QC).
91. On the irony of this, given that the court’s interpretation of s 44(i) hinged on concerns about foreign influence, see above (n 73).
92. Other countries with comparable representative democratic systems, including Canada, the United Kingdom, the United States and (except with respect to MPs who acquire a foreign nationality while sitting) New Zealand, do not disqualify dual citizens from candidature or service in their legislatures. We are unaware of any cases, in relevantly recent times, where individual members of the legislature were subject to compulsory military service imposed upon them by the foreign country of which they held citizenship.
93. Sykes (n 9) 113.
94. Ibid 114.
95. Re Canavan (n 2) 306 [44].
96. Ibid 313 [69]. Other examples given of ‘exorbitant’ laws, such as the ‘mischievous’ conferral of foreign citizenship upon the whole Parliament, are not necessarily examples of ‘irremediable’ obstacles to participation, since such a law need not necessarily preclude renunciation.
97. Re Gallagher (n 3) 484 [65] (Edelman J).
98. Ibid 476 [43].
99. Re Canavan (n 2) 297 [13].
100. Orr (n 8).
101. On the definition of ‘alien’, see Michelle Foster, ‘Membership in the Australian Community: Singh v Commonwealth and Its Consequences for Australian Citizenship Law’ (2006) 34(1) Federal Law Review 161.
102. This occurred historically with the automatic naturalisation, in most countries during a period spanning the early 19th century and the mid-20th, of foreign women who married citizens. See Helen Irving, Citizenship, Alienage and the Modern Constitutional State: A Gendered History (Cambridge University Press, 2016).
103. See Commonwealth Electoral Act 1918 (Cth) sch 1 Form DB, inserted by the Electoral Legislation Amendment (Modernisation and Other Measures) Act 2019 (Cth) cl 83.
104. See Phillips and Simon-Davies (n 14).
105. See, for example, Paul Karp, ‘Questions Raised Over Liberal Candidate Mina Zaki and Labor’s Sharyn Morrow’, The Guardian: Australia Edition (online), 4 May 2019 <https://www.theguardian.com/australia-news/2019/may/04/liberal-candidate-mina-zakis-eligibility-to-sit-in-parliament-questioned>.
106. Re Canavan (n 2) 313 [69].
107. Ibid 313 [72]. In light of the reasoning in Re Canavan, one might add: ‘that an Australian citizen [should] not be irremediably prevented by Australian law from participation in representative government’.
108. To renounce American citizenship, for example, requires payment of a fee of US$2350 (as at the time of writing), in addition to presenting in person for an interview at a US consulate or embassy (with associated travel costs); these rules are expressly intended to dissuade. While not technically irremediable, US renunciation would be out of the reach for many; it is, effectively irremediable in such circumstances. See general guidelines: US Department of State, Renunciation of US Nationality Abroad (Web Page) <https://travel.state.gov/content/travel/en/legal/travel-legal-considerations/us-citizenship/Renunciation-US-Nationality-Abroad.html>. The fee at: US Embassy and Consulates in Australia, American Citizen Services (ACS) Fees (Web Page) <https://au.usembassy.gov/u-s-citizen-services/acs-fees/>.
109. By which we mean that the Court has yet to pronounce a law of any country too onerous to meet the ‘constitutional imperative’.