Citizenship Seven: the High Court Judgment
Last Friday, 27 October 2017, the Full Court of the High Court of Australia, consisting of Chief Justice Kiefel, Justices Bell, Gageler, Keane, Nettle, Gordon and Edelman, announced their judgment in relation to the “Citizenship Seven”. This judgment decided the fate of seven Australian parliamentarians with regards to their eligibility to hold office in the Parliament of Australia and whether they should be disqualified by reason of their Citizenship status.
Out of the seven Ministers whose citizenship status was in question, only Senator the Honourable Matthew Canavan and Senator Nick Xenophon were held to have been eligible to hold positions of parliament at the time they were elected. Mr Scott Ludlam, Ms Larissa Waters, Senator Malcolm Roberts, The Honourable Barnaby Joyce MP and Senator the Honourable Fiona Nash were all held to be ineligible for Parliament by reason of their joint citizenships with other countries at the time of their election. The next step for the positions held by these senators is the holding of a new election and recount of the ballot papers.
Constitution s 44(i)
Section 44 of the Constitution of the Commonwealth of Australia Act outlines the rules for disqualification of any member of Parliament. This section provides that:
Any person who:
(i) is under any acknowledgment 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 a 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.
This provision has been interpreted in past High Court cases as meaning that people with joint citizenship are not permitted to stand for election. Those that wish to stand for election must show that they have taken “reasonable steps” to renounce their citizenship of the other country. One seminal case in the interpretation of s 44(i) is that of Sykes v Cleary (1992) 176 CLR 77, where in 1992 the High Court held that “whether an individual is a citizen of a foreign power is determined by the domestic law of the foreign nation; and second, that Australian citizens holding foreign citizenship will not be disqualified from election to parliament if they have taken ‘reasonable steps’ to renounce their foreign citizenship.”
The consequence of becoming disqualified under s 44 of the Constitution is stated in s 45(i), which provides that if a senator or a member of the House of Representatives “becomes subject to any of the disabilities mentioned in the last preceding section”, his or her place “shall thereupon become vacant.”
The Citizenship Seven proceeding
“Under the Commonwealth Electoral Act 1918 (Cth) any question respecting the qualifications of a senator or a member of the House of Representatives, or respecting a vacancy in either house of the Parliament, may be referred by resolution to the Court of Disputed Returns by the house in which the question arises . Questions concerning the qualifications of six persons elected as senators at the general election for the Parliament held on 2 July 2016 have been so referred. In each case the principal question is whether by reason of s 44(i) of the Constitution there is a vacancy in the place for which the person was returned.” at 
There were three different forms of questions which the High Court had to answer in relation to the Senators (see paragraphs -). The questions relating to Senators Canavan, Roberts, Nash and Xenophon were :
"(a) whether, by reason of s 44(i) of the Constitution, there is a vacancy in the representation of [the Senator's State] in the Senate for the place for which [the Senator] was returned;
(b) if the answer to question (a) is 'yes', by what means and in what manner that vacancy should be filled;
(c) what directions and other orders, if any, should the Court make in order to hear and finally dispose of this reference; and
(d) what, if any, orders should be made as to the costs of these proceedings."
With Regards to The Honourable Barnaby Joyce MP, the question to be answered by the High Court was the same as the above questions, except that question (a) was replaced with : “whether, by reason of s 44(i) of the Constitution[,] the place of the Member for New England (Mr Joyce) has become vacant.”
The third round of questions related to Mr Ludlum and Ms Waters and were posed at  as:
"(a) whether by reason of s 44(i) of the Constitution there is a vacancy in the representation of [the former Senator's State] in the Senate for the place for which [the Senator] was returned;
(b) if the answer to Question (a) is 'yes', by what means and in what manner that vacancy should be filled;
(c) if the answer to Question (a) is 'no', is there a casual vacancy in the representation of [the former Senator's State] in the Senate within the meaning of s 15 of the Constitution; and
(d) what directions and other orders, if any, should the Court make in order to hear and finally dispose of this reference."
Question of Construction of s 44(i)
In arguing the eligibility of the senators, three alternate constructions of s 44(i) were proposed. These arguments held the basis of the case as the eligibility of the senators depended on the interpretation of the section that was produced by the High Court.
“ First, the approach of the Attorney General, adopted by Senators Canavan, Roberts and Xenophon, was that s 44(i) requires that the foreign citizenship be voluntarily obtained or voluntarily retained. The implied element of voluntariness was said to import a requirement that the person know or be wilfully blind about his or her foreign citizenship. At some points in the Attorney General's submissions it was submitted that awareness of a "considerable, serious or sizeable prospect" or a "real and substantial prospect" of foreign citizenship would be sufficient. […]
 Secondly, the approach urged by Mr Joyce MP and Senator Nash was that s 44(i) requires that foreign citizenship be chosen or maintained. The essence of this approach was knowledge of the foreign citizenship. It was submitted that a person cannot make a choice to retain or renounce any foreign citizenship if he or she has no knowledge of that citizenship. Although the degree of knowledge that was said to apply in this context did not include constructive knowledge, it did include wilful blindness.
17 Thirdly, the approach urged by Mr Ludlam and Ms Waters was that s 44(i) requires that a person be "put on notice". On this approach, the person would be disqualified under s 44(i) if he or she had knowledge of facts that, in the mind of a reasonable person taking a properly diligent approach to compliance with the Constitution, ought to call into question the belief that he or she is not a subject or citizen of a foreign power and prompt proper inquiries. Knowledge would include, at least, knowledge of "primary facts" that would prompt inquiry and, at most, all of the knowledge of the person.”
High Court’s Judgment
In ascertaining the correct interpretation of s 44(i), the judges of the High Court of Australia looked at the text and structure of s 44(1). In doing so they referenced the preceding High Court case of Sykes v Cleary at - where Brennan J stated: that "[p]utting acknowledgment of adherence to a foreign power to one side", s 44(i) consists of three categories of disqualification, each of which describes a source of a duty on the part of a candidate for parliamentary office:
"The first category covers the case where such a duty arises from an acknowledgment of the duty by the candidate, senator or member. The second category covers the case where the duty is reciprocal to the status conferred by the law of a foreign power. The third category covers the case where the duty is reciprocal to the rights or privileges conferred by the law of a foreign power.
The second category refers to subjects or citizens of a foreign power – subject being a term appropriate when the foreign power is a monarch of feudal origin; citizen when the foreign power is a republic. …
The third category … covers those who, though not foreign nationals, are under the protection of a foreign power as though they were subjects or citizens of a foreign power."
The Justices affirmed this construction of the text of s 44(i), stating at  that: “Each approach highlights the distinction expressly drawn in s 44(i) between a voluntary act of allegiance on the part of the person concerned on the one hand, and a state of affairs existing under foreign law, being the status of subjecthood or citizenship or the existence of the rights or privileges of subjecthood or citizenship, on the other. For the sake of clarity, these reasons will use the two limb classification adopted by the amicus.”
In their judgment, the Justices then went on to discuss the purpose of s 44(i). Once again quoting Sykes v Cleary, they held that, at : “proof of actual allegiance as a state of mind is not required. Rather, as Brennan J explained in Sykes v Cleary, the second limb is concerned with the existence of a duty to a foreign power as an aspect of the status of citizenship.”
The High Court then went on to discuss the context and application of s 44(i), taking particular notice of the question of the foreign law in determining citizenship status.
“Whether a person has the status of a subject or a citizen of a foreign power necessarily depends upon the law of the foreign power. That is so because it is only the law of the foreign power that can be the source of the status of citizenship or of the rights and duties involved in that status. In Sykes v Cleary, Mason CJ, Toohey and McHugh JJ said that "[a]t common law, the question of whether a person is a citizen or national of a particular foreign State is determined according to the law of that foreign State", the common law rule being, in part, a recognition of the principle of international law that "it is for every sovereign State … to settle by its own legislation the rules relating to the acquisition of its nationality".” At 
Other factors that were discussed by the High Court were: existence of knowledge (or lack thereof) of citizenship status of the senators; and what consisted of “reasonable steps” in denouncing citizenship as per Sykes v Cleary. In summary, however, the justices held at - that:
“Section 44(i) operates to render "incapable of being chosen or of sitting" persons who have the status of subject or citizen of a foreign power. Whether a person has the status of foreign subject or citizen is determined by the law of the foreign power in question. Proof of a candidate's knowledge of his or her foreign citizenship status (or of facts that might put a candidate on inquiry as to the possibility that he or she is a foreign citizen) is not necessary to bring about the disqualifying operation of s 44(i).
A person who, at the time that he or she nominates for election, retains the status of subject or citizen of a foreign power will be disqualified by reason of s 44(i), except where the operation of the foreign law is contrary to the constitutional imperative that an Australian citizen not be irremediably prevented by foreign law from participation in representative government. Where it can be demonstrated that the person has taken all steps that are reasonably required by the foreign law to renounce his or her citizenship and within his or her power, the constitutional imperative is engaged.”
Of the seven Ministers, only two were held to be eligibly elected: Senator the Honourable Matthew Canavan; and Senator Nick Xenophon. The judgment of the High Court in these cases held that, as per the laws of the country of potential citizenships, these Ministers had never acquired the citizenship of the other country. As such, as per the laws of Italy, "Senator Canavan has never visited Italy and has never taken any steps to acquire Italian citizenship."
With regards to Senator Nick Xenophon, the High Court held that the sum of his association and experiences with Britain does not amount to his holding of British citizenship.
"For the purposes of s 44(i), Senator Xenophon was not a subject or a citizen of the United Kingdom at the date of his nomination and election as a senator. Nor was he entitled to the rights and privileges of a subject or citizen of the United Kingdom. Accordingly, there is no vacancy in the representation of South Australia in the Senate for the place for which Senator Xenophon was returned." at 
As for the other senators, the judgment of the High Court will result in disqualification from holding a position in the Australian Parliament, and therefore a new election and ballot count will be held in the upcoming months.
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Sykes v Cleary (1992) 176 CLR 77
Re Canavan; Re Ludlam; Re Waters; Re Roberts [No 2]; Re Joyce; Re Nash; Re Xenophon  HCA 45