The Constitution: Section 44

The Constitution is the foundation document of the Commonwealth of Australia. It symbolises a level of independence from England and the growth of Australia as a self-sustaining country. Since the 2016 Federal Election there has been an astoundingly large number of senators who have had to either resign or have been removed from Parliament due to technicalities in the Constitution.

Most recently has been the issue of Parliamentarians being forced to resign due to dual citizenship that they either overlooked or did not know about prior to entering Parliament. Having dual citizenship is a breach of section 44 of the Constitution which reads:

Any person who:

• 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; or
• …

shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.

It is quite clear from the text of the Constitution that Parliamentarians cannot be dual citizens. The reasons for this are self-evident. If a Member of Parliament holds allegiance to another country, there is a risk that they will act in that country’s best interests and not Australia’s. Where people hold citizenship without knowing they do so, either by some technicality or not being informed by their parents, the same risk does not apply.

In this way the Constitution is overly constrictive. Former Senator Larissa Waters was born in Canada. The law of Canada changed one week after she was born such that instead of gaining automatic citizenship upon birth, parents had to apply for a child’s Canadian citizenship. Senator Waters’ assumed that because neither she nor her parents applied, that she was not a citizen. Does disqualifying someone who has no connection to and no knowledge of allegiance to another country really give effect to the purpose of section 44?

Despite this, changing the Constitution to reflect a more purposive view of the citizenship restriction would not be a simple process. It requires a referendum voted on by Australians. Due to the formal requirements of a referendum to pass, namely a double majority (more information available here), there have only been 8 successful referendums out of 44 attempts since 1901.

While changing the constitution is a difficult process, the cultural and social dynamics are not the same today in 2017 as they were in 1901. Section 44 is but one aspect of the Constitution which is becoming outdated. The recognition of Aboriginal and Torres Strait Islanders as Australia’s First People in the Constitution is also an amendment that has gained momentum. There is a growing appetite for change of this type and perhaps could be the gateway to modernise the Constitution as a whole.

The information posted on this blog represents our opinion and should not be taken as legal advice.