The shadow of Section 44(i) of the Constitution-barring dual citizens from running for election - has fallen across the past two federal elections and threatens to do so again when the Prime Minister heads to Yarralumla early next year. In 2017-18, the havoc was laid bare, with 15 federal politicians becoming ineligible to sit in Parliament because of their dual nationalities. With the Constitution unchanged, the coming election relives the madness inherent in doing the same thing over and expecting a different result.
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To bring Australia into the 21st century and ensure a fully representative Parliament, Section 44 cries out for reform. The why of doing so goes beyond the chaos of having elected representatives being found ineligible. Look at the maths. Almost 49 per cent of Australians who were born overseas or whose parents were born overseas may be dual citizens. The percentage escalates if we include, as we should, grandparents or a spouse with another citizenship. This seems like a jump, but each country's citizenship laws are different and some nations take a wide and inclusive approach. This generosity to their expatriate or descendant citizenry risks making completely unaware Australians ineligible to run for Parliament unless they jettison their other citizenship/s, often an onerous and expensive task.
The potential for debacle continues despite the recommendations of a parliamentary report recommending changes to the Constitution, as nothing has changed. Indeed, in 2018 the High Court expanded the possibility of exclusion because despite Katy Gallagher having done all that she could have to renounce her British citizenship before nominating in 2016, the United Kingdom Home Office had not processed her application at the time of her nomination, making her ineligible. Fortunately for Senator Gallagher, by the 2019 election, she was free to run.
No doubt for these reasons, in October the Special Minister of State Ben Morton asked the Joint Standing Committee on Electoral Matters to inquire and report on the Candidate Qualification Checklist that is processed by the Australian Electoral Commission. When an election is called, a person who decides to run is required under the Electoral Act to complete a checklist relating to the candidate's eligibility under section 44 of the Constitution. An exposure draft of that form for the next election is now being reviewed by the committee.
I have long championed this kind of checklist to put candidates on notice of potential other citizenships that could undo their candidacy from the outset. The proposal includes questions about a candidate's maternal and paternal parents, grandparents, biological or adoptive, dates of births and countries of citizenship (because the citizenship laws in each of those other countries may have changed since their birth) and then the same for one's spouse, as a spouses country's laws may extend to them. The reach is massive.
Having found out all this information, the candidate then must be sure they are not a citizen of any of those countries, and not only that, according to the decision of Gallagher, be freed of that other citizenship before nominating for Parliament. That means, if you get to the end of that form and do the proper diligence of finding out there is in fact a lurking citizenship of another country, you can't complete the form until you have got your formal renunciation processed. In other words, you may find that you are not allowed to run after all - as it will be too late to do anything to free yourself because you'll need to rely on the other country's citizenship processes to be completed.
This administrative nightmare for the AEC - and for the candidate - evidences both an annoying problem and a spectacular opportunity for healthy constitutional change. For having so many dual citizens in our midst queuing to affirm their Australian citizenship by actively nominating for parliament shows the success of our multicultural democracy. Rather than demanding sole Australian citizenship and constructing elaborate forms to ascertain this as the case, we should allow dual and multiple citizens to stand for election. A register of citizenships is a simple way of dealing with any perceived conflicts of interest should they arise.
Acknowledging and celebrating our multicultural success by allowing dual and multiple nationals to stand for election would make for a far more representative Parliament and would immeasurably expand its gene pool. Without such an amendment, more than 49 per cent of our citizenry is effectively prevented from serving in the nation's Parliament. What a loss, what a missed opportunity, what a recipe for othering half of our citizenry and for starving the other half of the benefit of their connections, lived experience and Parliamentary talent.
- Professor Kim Rubenstein is the Co-Director of the 50/50 by 2030 Foundation at the University of Canberra. She intends to nominate to run as an Independent to represent the ACT in the Senate.
