Australia’s Federal Parliament has been plagued by a revolving door of prime ministers and the crumbling edifice of party unity. The last thing it needed was the section 44 dual citizenship crisis. It has truly been one of the most bizarre dilemmas to hit Canberra. The most recent victims of this constitutional imbroglio are three Labor MPs and one Central Alliance MP. The Coalition has bullish ambitions to defy the odds by claiming a victory against the opposition in one of the by-elections held on Saturday, a feat which has not been achieved in almost a century. The significance of the political scandal, both in Canberra and overseas, can only be fully appreciated through analysing the events of the past year.
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.
Section 44(i)
Australian Constitution
The Australian Constitution is rightly praised as an invaluable text that enshrines the fundamental institutions that provide for our basic democratic liberties and the rule of law. However, the arguably less important provisions of the 117-year old text can be overlooked and can have serious ramifications. The first dominoes fell in July 2017 with the resignations of Greens Senators Scott Ludlam and Larissa Waters after discovering their respective New Zealand and Canadian nationalities, breaching section 44(i) of the Constitution. Despite sending shock waves through the media, the unprecedented occurrence had minimal impact as it concerned senators from a minor party. However, the dominoes continued to fall, and to date 15 MPs and Senators, largely from the two major parties, have been forced to either resign or face by-elections as a result of being dual-nationals.
Some may question as to why or how this could occur. The simple answer is that the Australian Constitution contains a provision that prevents Australians that are citizens of another country from being members of Federal Parliament. Interpreting this mysterious prohibition, the High Court ruled that MPs must have taken reasonable steps to renounce their foreign citizenship prior to running in an election. Unknowingly possessing dual-citizenship or even attempting to renounce it in a matter deemed unsatisfactorily reasonable by the court results in breaching section 44(i).
The overseas reaction to this debacle has been one of confusion with media outlets such as CNN, the BBC, and the New York Times providing extensive coverage on the matter. Understandably, there have been concerns regarding the stability of the Australian government, particularly as its majority was threatened with by-elections in New England and Bennelong late last year. If the government had lost either of those contests, the implications for Australia’s credibility in its relations with other countries may have been adversely affected.
“Should there be a change of government, I would find it very hard to build trust with those involved in allegations designed to undermine the Government of Australia.”
Julie Bishop
Foreign Minister
August 15th, 2017
Australia’s foreign partners have been bemused by the constitutional crisis. New Zealand faced scrutiny after a NZ Labour Party MP voiced suspicions over the NZ citizenship of Australia’s former Deputy PM, Barnaby Joyce. Tensions culminated when Foreign Minister Julie Bishop accused Labor leader, Bill Shorten, of colluding with New Zealand Labour in order to “undermine the Australian Government,” questioning the ability for the Turnbull Government to “trust” the NZ Labour Government. Albeit temporary, this fallout demonstrated the significant international impacts of what many would consider a domestic political issue.
Sections of Australian society have challenged the relevancy of section 44(i) in the context of a modern and multicultural Australia and even voiced an intention to amend or remove it through a referendum. Ironically, those that formed the Constitution were British as Australian citizenship did not exist prior to 1949. Similarly, the vast majority of those involved in the dual-citizenship scandal have been British nationals. There is some merit in amending section 44. However, Australia’s conservatism regarding constitutional change makes it unlikely such a reform would attain a double majority in a referendum, the requirement for constitutional amendments
“We have heard time and time again from our most senior national security leaders that we live in a time of unprecedented foreign intelligence activity against Australia with more foreign agents, from more foreign powers, using more tradecraft to engage in espionage and foreign interference than at any time since the cold war.”
Christian Porter
Attorney General
June 28th, 2018
Instead, there has been increased focus on foreign interference, particularly as the domino effect of section 44 coincided with the fall from grace of former Labor Senator, Sam Dasyari. As revealed by ABC’s Four Corners in July 2017, Dastyari was part of a broader system of foreign donations being used to buy influence within the Federal Parliament. In response to mounting pressure, the Turnbull Government has legislated new sabotage and espionage offences with more significant penalties. The legislation also created a foreign agent register allowing for such conduct to be better monitored. On the advice of the nation’s top security agencies, the Australian Government also cancelled Chinese corporate and government involvement in critical infrastructure projects such as the NBN and the 5G network, halting potential security breaches. This approach has even extended to the Solomon Islands, with Australia preventing Huawei from building an underwater internet cable linking the Islands and the Australian mainland.
Fast forward to July 2018, and the latest fallen dominoes are having to contest four by-elections, two of which, Longman and Braddon, are of particular concern. In 2016, Labor was victorious in Braddon by a margin of 1.5% and won Longman by an minuscule 0.8%. However, Labor will have to contest these seats in the face of greater One Nation support in Queensland and the Liberal party’s improved Tasmanian state election results. The media is depicting these “Super Saturday” by-elections as an indication for the next Federal Election. Needless to say, the stakes are high. A clean sweep for Labor would likely dismiss a challenge to Bill Shorten’s leadership. Yet, a loss in one or two seats could be catastrophic. A Coalition victory in at least one seat would increase the Government’s majority, secure Malcolm Turnbull’s Prime Ministership, and further erode confidence in Shorten. Some political commentators are predicting an early election if the Coalition are victorious, as inner leadership turmoil within ALP ranks could motivate the Turnbull government to capitalise on Shorten’s potential fall in popularity. An early election and a potential change in government all as a result of the section 44 crisis could further foster an image of government instability overseas, especially after five prime ministerial changes since 2007.
The constitutional drama that has played out over the past year is by no means trivial. The full impact on Australia’s global stance and its foreign relations has been extravagantly demonstrated. The crisis has only fuelled increased paranoia surrounding recent attempts of foreign interference with Australia’s democratic political system. No one could have predicted this crisis. Regardless, 15 reasons later and one can just picture Bill Shorten looking back to Ludlam’s 2017 resignation, reminiscing, “So, you see, that’s where the trouble began. That Smile. That damned smile.” Who would have thought that the Australian Constitution, a document designed to safeguard stable governance would have the potential to so profoundly disturb it?
