The Greens’ disastrous week, and why s 44 needs to change

It has been a bad few days for the Greens. Last Friday, Greens Senator for Western Australia, and co-deputy leader of the Federal party Scott Ludlam resigned, after realising he was still a citizen of New Zealand. Today, prompted by her colleague’s revelation, fellow co-deputy leader and Senator for Queensland Larissa Waters also resigned, realising she too was an overseas citizen, of Canada.

Ludlam, a Senator of nine years service, realised the error when a member of the public raised the matter with him. He had left New Zealand at the age of three, has lived in Australia since 1978, and says he did not realise any New Zealand citizenship had survived his naturalisation as an Australian in his teens.

Waters, a Senator for six years with a background in law, realised after checking, that Canadian citizenship laws had changed shortly after her birth. On my reading, it appears that Waters qualified under the 1946 Canadian citizenship laws, which confer citizenship based on jus soli, a concept where regardless of parental heritage, a child qualifies for citizenship solely by being born in a particular jurisdiction. Under the 1946 law, any Canadian citizenship would be extinguished by holding Australian citizenship. However a week after Water’s birth, the 1977 Canadian citizenship law came into affect, permitting dual citizenship.

That two Senators were allowed to serve for years despite being ineligible under the Constitution, demonstrates a failure of process. Evidently neither candidates themselves, nor the vetting process of the party, adequately interrogated their citizenship background and eligibility. The consequence of this being both invalid Senators now face the prospect of paying back years of pay and entitlements.

Both Senators claim to have been unaware they were dual citizens. They believed their sole allegiance and duties were as Australian citizens. But they will find little support in law for this as a potential defence. s 44(i) of the Constitution makes it clear that being under any acknowledgement of allegiance or entitlement to rights and privileges of a foreign power, is grounds for disqualification. What matters under current law is not one’s awareness or belief, but rather their status under the law of the foreign power. The High Court has said only through reasonable steps under the law of the foreign power to terminate citizenship can one be freed from it, rejecting that a genuine belief or cursory attempt is enough.

But that’s the law as it stands today. And the Greens are not the first party to have run into issues under s 44(i). There is a genuine need to ask whether this provision of the Constitution still makes sense? Whether a provision crafted when Australia was part of an empire, within which much immigration occurred, by peoples not considered foreign, still makes sense in today’s multicultural Australia?

Consider that the United Kingdom, New Zealand, Canada, and even the United States, do not have as restrictive a provision for their national legislatures. Nor really do Australia’s states, which are Constitutional entities in their own right. Consider also that Australia is in a minority of countries who permit foreign political donations. The United Kingdom, New Zealand, Canada, and the United States, all prohibit such donations.

If the object of s 44(i) is to protect the integrity of Australian legislative decision making from interests outside of, and perhaps contrary to Australia’s own, it seems an anachronistic and shallow way in which to do so in a modern, multicultural nation. Yet the risks from foreign donations, their corrosive potential to the integrity of, and faith in institutions, is clear. As recently explored on the ABC’s Four Corners, it is a significant concern held by intelligence agencies.

A Constitution and the laws under it must protect and reflect a nation. If s 44(i) was ever a protection, it was a minor one, and it no longer reflects this nation, nor the laws of nations with whom we share a political and legal heritage.

Image: Wikipedia, JJ Harrison (CC BY-SA 3.0)