Between the Local and the Global: Plural Citizenship in Australia[1]

 

Since Section 17 of the Australian Citizenship Act has been repealed on 4 April 2002, Australians no longer lose their citizenship when acquiring the citizenship of another country.[2] The 116-year-old Section 44(i) of the Australian Constitution, however, still forbids anyone holding plural (dual or multiple) citizenship from running for Parliament.[3] In the wake of Australia’s still ongoing “dual citizenship crisis”,[4] the High Court of Australia in its late 2017 black letter decision of Re Canavan, unanimously held that five parliamentary candidates were deemed ‘a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power’ at time of nomination for the 2016 federal election.[5] Each was then disqualified from being a senator or member of the House of Representatives by reason of Section 44(i).[6]

 

Citizenship’s legitimacy today is still seen as largely depending on political participation.[7] Citizenship itself, however, does not necessarily provide a guarantee of the proper and loyal fulfilment of sovereign functions.[8] Plural citizenship, on the other hand, may facilitate the naturalization and political assimilation of immigrants.[9] Australia’s latest census data shows that 49% of Australians were born overseas or have an overseas parent.[10] In times of globalization, Re Canavan then appears as an anachronism, situated alongside the 1953 International Court of Justice’s Nottebohm decision, requiring a ‘genuine connection’.[11] While direct political participation is perhaps one of the very last things new citizens may have in mind, preserving at least the future potential for participation in the polity of choice is of relevance to both singular and plural citizens in the evolution of citizenship.[12]

 

The list of past Australian Prime Ministers who would today be in trouble with the current government’s take on dual citizenship is long.  Alfred Deakin, whose parents were born in the UK, even held office three times.[13]

 

Author: Michael B. Krakat, IMCM, Solicitor Supreme Court of Queensland & High Court of Australia, Australian Postgraduate Award Research Scholar, Bond University

 

 

 

[1] All online sources have been (re-)accessed on 02.01.2018.

[2] Australian Citizenship Legislation Amendment Act 2002 (Cth), amending the Australian Citizenship Act 1948 (Cth). Since 1 July 2007, the 1948 Act has been replaced by the Australian Citizenship Act 2007 (Cth).

[3] Section 44(i) sets out the prohibition to be elected to parliament for those holding dual or multiple citizenship, while section 44(ii) deals with anyone with a criminal conviction carrying a jail term of one year or more. Section 44(iii) bans people declared bankrupt or insolvent from holding office, whereas section 44(v) prohibits politicians from directly or indirectly benefitting financially from their role.

[4] For further reading, see Mark Kenny, ‘Citizenship crisis threatens legitimacy of the Australian political system’, 2 November , 2017, The Sydney Morning Herald, http://www.smh.com.au/federal-politics/political-opinion/citizenship-crisis-threatens-legitimacy-of-the-australian-political-system-20171101-gzch53.html; Trevor Marshallsea, ‘How a dual citizenship crisis befell an immigrant nation’, 14 August 2017, BBC News, http://www.bbc.com/news/world-australia-40773930; Gabrielle Appleby, ‘The High Court sticks to the letter of the law on the citizenship seven’, 27 October, 2017, 6:24pm AEDT, The Conversation, http://theconversation.com/the-high-court-sticks-to-the-letter-of-the-law-on-the-citizenship-seven-85324.

[5] Re Canavan; Re Ludlam; Re Waters; Re Roberts [No 2]; Re Joyce; Re Nash; Re Xenophon [2017] HCA 45, judgment made 27 October 2017, http://www.hcourt.gov.au/assets/publications/judgment-summaries/2017/hca-45-2017-10-27.pdf; This decision confirmed the majority’s decision in Sykes v Cleary (1992) 176 CLR 77.

[6] A person may not be so disqualified where that person took reasonable steps to renounce their foreign nationality. Knowledge or actual allegiance as a state of mind is not necessary. The mere potential to foreign citizenship does not trigger section 44(i).

[7] See for instance in Engin F. Isin & Greg M. Nielsen (eds.) Acts of Citizenship (Zed Books, 2008).

[8] See Christian H. Kalin, Ius Doni: The Acquisition of Citizenship by Investment, (Ideos, 2016), at 92.

[9] Greg Brown, ‘Political Bigamy? Dual Citizenship in Australia’s Migrant Communities’ (2002) 10 (1) People and Place, 71.

[10] See Australian Bureau of Statistics, ‘Census reveals a fast changing, culturally diverse nation’, Media release 27 June 2017, http://www.abs.gov.au/ausstats/abs@.nsf/lookup/Media%20Release3.

[11] Nottebohm Case (Liech. v. Guat.) 1953 ICJ 111 (Nov. 18). Today’s meaning of a “genuine connection” may differ from that of 1953.

[12] This reasoning is no different for citizens by investment and the direct acquisition of citizenship.

[13] At least 11 former PM’s were born overseas (most of them were British subjects at the time) or had dual citizenship through their parents or other means. The list includes names such as Edmund Barton, Alfred Deakin, George Reid or John Curtin. The crisis is ongoing, and the next persons caught in the dual citizenship mess include names such as Tony Abbott; see: Jessica Haynes and Peter Marsh, ‘Dual Citizenship: Would any former prime ministers be caught up today?’ 4 November 2017, 7:13 PM, ABC news,  http://www.abc.net.au/news/2017-11-04/some-former-pms-could-have-been-caught-up-in-citizenship-mess/9115988