Posted on 05/08/2018 9:54:59 PM PDT by naturalman1975
Three Labor MPs have resigned from federal parliament after the High Court found Opposition senator Katy Gallagher was ineligible to stand for the 2016 election because of her dual British citizenship status.
Marginal seat Opposition backbenchers Susan Lamb and Justine Keay, along with Josh Wilson, have subsequently quit the House of Representatives, sparking a series of by-elections.
Crossbench lower house MP Rebekha Sharkie, who was elected in 2016 as a Nick Xenophon Team candidate, has also quit parliament because like the Labor MPs, she too could be a dual Briton.
Senator Gallagher had claimed she took all reasonable steps to renounce her British citizenship before the election, but was still a British citizen when the writs were issued.
(Excerpt) Read more at dailymail.co.uk ...
Australia's constitution (written in the late 1890s and in effect since 1901 contains the following provision (part of Section 44):
44. Any person who -
(i.) Is under any acknowledgement 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 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.
Now, in 1901, the concept of Australian citizenship did not exist - Australians were, in common with people throughout the British Empire - British subjects. It wasn't until the 1940s that concepts of citizenship of individual citizenship of particular countries began to be enacted into law across the Empire/Commonwealth - in 1949, it became possible to be specifically a British citizen (a citizen of the United Kingdom of Great Britain and Northern Ireland), and/or specifically an Australian citizen (a citizen of the Commonwealth of Australia) although both groups still remained British subjects as well until the 1980s.
The point is until at least 1949 and quite possibly until the 1980s, there was no conflict between Section 44 and somebody holding multiple citizenships for more than one Commonwealth Realm.
And it wasn't until 1999 that the issue was even raised in a court - in that year, Heather Hill who had been elected a Senator for Queensland, was ruled ineligible to be a Senator because she held British citizenship as well as Australian.
It is actually quite easy, under certain conditions, for an Australian to hold a foreign citizenship without necessarily being aware of it, especially from another Commonwealth country. For example, if your father was a British, Canadian, or New Zealand citizen, you might also be one even if you were born in Australia as an Australian citizen and have lived here all your life. And it doesn't matter in any aspect of Australian law - except in terms of eligibility to be a Member of Parliament.
Now, in June last year, a lawyer in Perth, Western Australia, developed suspicions as to whether two Senators - Derryn Hinch (Justice Party - a very minor party), and Scott Ludlam, the co-deputy leader of the Australian Greens (technically a minor party, but one with a significant Senate presence) might be New Zealand citizens as both were born in New Zealand. So he checked. He found that Hinch had renounced his New Zealand citizenship prior to seeking office - but that Ludlam had not. Ludlam had wrongly assumed he lost New Zealand citizenship when he was naturalised as a citizen in his teens. He hadn't, he was a dual citizen, and was therefore ineligible to be a Senator. He resigned.
And things have snowballed from there. I won't go into all the details, but in brief:
Senator Larissa Waters (the other co-deputy Leader of the Greens) had to resigned when it emerged she held Canadian citizenship as she was born in Canada and had never renounced. She was also a naturalised Australian citizen.
Senator Matthew Canavan, a member of the Liberal National Party (part of the conservative coalition currently in government) resigned from the Ministry (he was Minister for Resources) but remained in Parliament pending a High Court decision, because it was possible he had - without his knowledge - acquired Italian citizenship as an adult when his mother applied for it. He was eventually cleared by the High Court as eligible and has been restored to the Ministry.
Senator Matthew Roberts, a member of the One Nation Party, a minor party, is identified as being of possible Indian citizenship as he was born in India. Investigation reveals that while he isn't an Indian citizen because he was born to a British father, and India didn't grant automatic citizenship to the children of British fathers resident in India, he was actually a British citizen and had never renounced that, although he was a naturalised Australian citizen. He did not resign but remained in Parliament pending a High Court decision, which went against him, forcing him from Parliament.
The Deputy Prime Minister, Barnaby Joyce, Leader of the National Party (part of the conservative coalition) was informed he might hold New Zealand citizenship even though he was born in Australia, by descent from his New Zealand born father. He stood down as Deputy Prime Minister but remained in Parliament pending a High Court decision, which found that he was a dual citizen. He then resigned from Parliament, renounced his New Zealand citizenship, and was re-elected in a by-election (special election), and was reappointed as Deputy Prime Minister and Leader of the National Party - although he has since stood down from both those positions because of a scandal. (Note - the option to resign, renounce, and run again is available to Members of the House of Representatives, but not to Senators (if a Senator is ineligible, the person who was next in line to be elected is elected. If a Senator was eligible and resigns, a replacement is appointed by the Governor of their state, from the same party they represented - the similarities that exist between these processes and US processes are because the US constitution was used as a secondary model for part of Australia's, although the primary model was British constutional law.)
Senator Nick Xenophon, leader of the minor party named after him (the Nick Xenophon Team), was informed he held an unusual and very limited form of British citizenship (British Overseas Citizen) through his father who was born in the then-British colony of Cyprus. He had renounced any claim to Greek or Cypriot citizenship prior to standing for Parliament, but was unaware of his father's technical status. He remained in Parliament (he has since resigned) pending a High Court decision, and was cleared on the basis that his BOC status is so limited, it doesn't constitute a shared allegiance (basically it only exists in British law so that nobody can accidentally be left entirely stateless by the many changes made to British citizenship law since the 1940s - if that would otherwise happen, they still have BOC status).
Senator Fiona Nash, Deputy Leader of the National Party, is informed that she has British citizenship by descent from her father. She decides to remain in Parliament pending a High Court decision. The eventual decision goes against her and she is forced out.
Senator Stephen Parry, Liberal (the major party in the conservative coalition), and President of the Senate, reveals he has British citizenship by descent from his father, and resigned.
John Alexander, Liberal, reveals he may have British citizenship by descent (he had believed his father had renounced his British citizenship but is now checking). When it is found no evidence exists of his father's renunciation, he resigns, renounces, and reruns, being re-elected.
Senator Jackie Lambie, leader of the minor party named after her, the Jackie Lambie Network, reveals she has British citizenship by descent via her father and resigns.
Senator Skye Kakoschke-Moore of the Nick Xenophon Team, resigns after she discovers that because she was born after 1984, she acquired British citizenship by descent from her mother (prior to 1984, only the father automatically bestowed it).
For those keeping count, basically, last year seven of the seventy six Australian Senators had to resign over this issue. Two more were cleared. Two Members of the 150 Seat House of Representatives (including the Deputy Prime Minister) had to resign but were re-elected at by-elections.
Of these nine, four were members of the government (the conservative coalition), two were Greens, and three were from minor parties.
Of the nine, one might possibly be seen as having some sort of reasonable excuse for their mistake in my view - Senator Waters was born the actual week that Canadian citizenship law changed, and I can understand why a check by her as to whether she needed to formally renounce or not gave her the wrong impression. The other eight were at the very least very careless in not addressing these issues, given the 1999 decision that made it clear dual citizenship was a potential problem.
Now, we come to today's situation.
All through the period this was happening last year, the opposition, the Labor Party, was insisting that their own internal processes meant that all their MPs and Senators were eligible - that while - as I just said - all the government and minor party members mentioned above were careless and broke the rules, Labor had such rigourous procedures in place, that they were all fine. Labor has tried to spin this into a scandal that doesn't effect them. And most of the media spent last year letting them get away with that, even as increasing doubts were raised.
Today, we know that Labor was not being honest with the Australian people - while all of the above can be criticised for their failures, Labor failed in exactly the same way and has spent months trying to get away with it.
Labor Senator Katy Gallagher has British citizenship by descent. She did make an attempt to renounce it prior to running for election, but that attempt failed as she didn't provide all the necessary paperwork to the British government and she knew it had failed. Her subsequent successful renunciation came too late.
Labor MP Susan Lamb has British citizenship by descent. She left her attempt to renounce too late, and so was not eligible for election. Her subsequent successful renunciation came too late. She does have the option to validly contest a by-election.
Labor MP Justine Keay has British citizenship by descent. She left her attempt to renounce too late, and so was not eligible for election. Her subsequent successful renunciation came too late. She does have the option to validly contest a by-election.
Labor MP Josh Wilson has British citizenship by birth. He left his attempt to renounce too late, and so was not eligible for election. His subsequent successful renunciation came too late. He does have the option to validly contest a by-election.
I have some degree of sympathy for the position of these last three. They did attempt to renounce as they should and part of their problem was how long it can take the British government to recognise renunciations. But any sympathy or understanding must be tempered by the realisation that the Labor Party has spent most of the last year insisting they were perfect over this issue and resisting any attempts to properly investigate the status of their MPs and Senators.
At every turn, Labor has tried to avoid facing the consequences of this situation. And much of the media has treated this with a ridiculous amount of tolerance.
(Nick Xenophon Team MP, Rebekah Sharkie has also resigned today over the same issue. She left her attempt to renounce too late, and so was not eligible for election. Her subsequent successful renunciation came too late. She does have the option to validly contest a by-election.
Its true if Parliament has made Australian citizenship a requirement for holding public office.
Otherwise British subjects should be eligible.
Some Commonwealth countries established national citizenship in the 1940s. Canada did as well as South Africa.
You can only participate in national affairs if you are a citizen of those countries.
Parliament hasn't. The constitution does. Parliament can't amend the constitution except by a rather complex process that requires referendum.
What complicates matters is that when the constitution was written, the concept of multiple citizenship or separate Australian citizenship did not exist in British law - and so those issues were not considered, and the law was not written to handle them one way or the other.
The High Court is (rightly in my view) taking a plain English, black letter law, interpretation of the relevant section but it can't be denied that it may never have been the intent of the writers in the 1890s to exclude dual citizens from Parliament. It wasn't an issue they even considered, because it wasn't a concept that existed in the laws they were familiar with and basing decisions on.
So in Australia, you have to be a Member of Parliament, you not only have to be an Australian citizen - you can not a citizen of any other country.
Dual (or multiple citizenship) is fine in any other circumstance - just not for federal Parliament.
Australia is a federal monarchy.
Its Constitution came later than Canada, which is more flexible.
That makes it different from the UK and NZ which have no formal Constitution.
Then again, they have always been unitary states though the UK is nowadays more of a devolved federation.
I will disagree,
As you noted the language is “(i.) Is under any acknowledgement 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 citizen of a foreign power:...”
The idea that the Commonwealth realms who share a common history from their very founding and still share the same monarch are “foreign” powers is patently absurd.
Even granting the point, as you noted, the lines between citizenship were fuzzy well into the 1980s. The High Court drew a hard line where it does not exist.
This is festering wound on a body politic imposed by a court completely lacking any awareness of common sense.
I, (name), do swear that I will well and truly serve Her Majesty Queen Elizabeth the Second, Her heirs and successors according to law, in the office of Governor-General of the Commonwealth of Australia, and I will do right to all manner of people after the laws and usages of the Commonwealth of Australia, without fear or favour, affection or ill will. So help me God!
So MPs must swear to serve Her Majesty Queen Elizabeth the Second, but cannot be a dual British Subject and Australian citizen?
Yeah, the law is... somewhat confused. That's why the High Court has had to rule on what it means, and as it is the highest Court available, its ruling stands. But there are legal experts who disagree with its interpretation - they wer the ones making cases during the recent hearings.
Having said that, this is the legal situation as I understand the High Court has interpreted it.
Let's start with one basic point just for the record. British subject status has no relevance.
It barely exists anymore as a legal concept and hasn't since the 1980s.
In the United Kingdom, under the British Nationality Act of 1981, the only people who remain British subjects are people born in the Republic of Ireland before 1949 who claimed their status as a British subject following Irish independence, and who have continued to retain until today, and some people who were residents of British colonies prior to those colonies becoming independence who have no other citizenship status than being a British subject - if they have any other citizenship status of any sort, they lose their status as a British subject, but they are allowed to retain it to avoid leaving them stateless.
From 1949 until 1983, British citizens (citizens of the United Kingdom, a status that came into existence in 1949) wer both British citizens and British subjects. Since 1983, they are only British citizens, not British subjects.
In Australia, from 1949 (when the idea of Australian citizenship also came into being), Australians were Australian citizens and British subjects until 1983, under British law, and until 1987, under Australian law. They ceased to be British subjects under British law in 1983, and under Australian law in 1987.
So - the issue is not whether somebody can be an Australian citizen and a British subject and be eligible to sit in Parliament - until 1987, they could be.
But they cannot be an Australian citizen and a British citizen and sit in Parliament. They probably couldn't do so from 1949 onwards, and certainly couldn't do so from 1986 or 1987 onwards, although the High Court did not rule on this issue until it came up in 1999.
So MPs must swear to serve Her Majesty Queen Elizabeth the Second, but cannot be a dual British Subject and Australian citizen?
Leaving aside the technical difference between subject and citizen, I've just gone into, we then get to the next issue.
Australians do not swear allegiance to Elizabeth II, by the Grace of God of the United Kingdom of Great Britain and Northern Ireland and of Her other Realms and Territories Queen, Head of the Commonwealth, Defender of the Faith,
but to Elizabeth the Second, by the Grace of God Queen of Australia and Her other Realms and Territories, Head of the Commonwealth.
While this is (obviously) the same phyiscal person, and the laws governing the succession in both countries are the same meaning they will remain the same physical person, legally speaking the Queen of the United Kingdom, and the Queen of Australia are not the same person.
The Queen of the United Kingdom, and the Queen of Australia are two separate people in law, and under the constitutional conventions and laws of both countries.
The High Court has interpreted this since 1999 to mean that the United Kingdom is a foreign power for the purposes of Australian law and has been since 1986 at the latest. This is based partly on the fact that we no longer have a common citizenship status of any type, but also based on the provisions of the Statute of Westminster and the Australia Act of 1986, that removed any powers of the British government to pass laws or direct policy for Australia (until the passing of the Australia Act, the UK retained a theoretical power to pass legislation for Australia although it hadn't done so in decades - interestingly it did do so in 1986, passing virtually the same Australia Act in Westminster and was passed in Canberra, just to make certain the law was actually passed by the correct Parliament! In a strict legal sense, Australia was not fully legally independent until 3rd March 1986).
You may disagree - and I may disagree (and to some extent I do, although I think I understand the High Court's logic and reasoning and am doing my best to present it accurately), but as the Constitution itself states in Section 76 that it is the High Court that rules on interpretations of the Constitution... well, they have. And that's it. They could theoretically change their own ruling in the future, but as it is... that's all she wrote.
Even if it is regarded as some sort of festering wound, there's no way to address it without altering the constitution.
There is a movement to do that, but it requires a referendum and Australians have historically been very resistant to changing the constitution. And honestly, in this case, getting the average voter to understand that allowing dual citizens would not allow non-citizens to be in Parliament... we have compulsory voting and getting 50% of voters overall and 50% in a majority of states as well, to understand distinctions like that... I could easily see a referendum failing simply because people didn't understand what they were voting for or against.
The problem with the High Court ruling is that because the lines between an Australian Citizen and a citizen of other Commonwealth countries were so blurry for so long that a significant portion of the Australian population is now ineligible for election to their own Parliament.
Given the number of 1st, 2nd, and 3rd generation immigrants in Australia, this could approach 50% of the population.
Effectively you can’t stand for election as an MP without checking your ancestry for multiple generations to verify you don’t have some unknown eligibility for foreign citizenship.
It may be “legal” but has nothing to do with the intent or plain meaning of the words when the Constitution was written.
Thank you very much for taking the time provide the education into the nuances of Australian law.
It now makes more sense.
So the Queen of the United Kingdom is the Queen of Australia. (totally separate offices that happen to be occupied by the same person)
So does the Queen have Australian citizenship as well as British citizenship?
If she does, why can’t members of her Parliament? Seems kind of strange to me.
The Queen doesn't even have British citizenship. She is not a citizen of any of her realms.
Wow. Really? That just seems so strange.
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