The Constitution of Parliament

Posted 29 August 2017

In the past month the eligibility of at least seven members of the Australian Parliament has been called into question by way of foreign citizenship.

Under section 44(i) of the Australian Constitution, "any person who "¦ is under 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 member of the House of Representatives".

This puts the sitting of Senator Scott Ludlam of Western Australia, Senator Larissa Waters of Queensland, Senator Malcolm Roberts of Queensland, Senator Matthew Canavan of Queensland, Senator Fiona Nash of New South Wales, Senator Nick Xenophon of South Australia, and the Member for New England, Barnaby Joyce in question.

The Parliament has referred these members to the High Court, which sat as the Court of Disputed Returns on 24August to give direction to the Senate and House of Representatives respectively on the matters. Section 376 of the Electoral Act 1918 (Cth) refers any questions to about the qualifications of a Senator or of a Member of the House of Representatives to the Court of Disputed Returns, giving the Court jurisdiction to hear and determine the questions.

The Court will consider:

(a) whether, by reason of s 44(i) of the Constitution, there is a vacancy in the representation of [the seat] for the place for which [the member] 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 seat] in [the Senate or House of Representatives] within the meaning of s 15 of the Constitution;

(d) what directions and other orders, if any, should the Court make in order to hear and finally dispose of this reference; and

(e) what, if any, orders should be made as to the costs of these proceedings.

The events of the last month could have been entirely avoided had the original drafting of section 44 prevailed. Debated in 1897 was a section 44 which disqualified anyone who "has done any act whereby he has become a subject or citizen "¦ of a Foreign Power".

That the concept of Australian citizenship independent of the UK did not exist until 1949, some 48 years after the Constitution was enacted, only adds to calls for a review of the current citizenship arrangements.