Foreign citizenship and section 44(i)

Next week a Full Court of the High Court sitting as the Court of Disputed Returns will hear argument over three days on whether the foreign citizenship provisions of s.44(i) of the Constitution rendered invalid the elections of seven individuals – Matt Canavan, Scott Ludlam, Larissa Waters, Malcolm Roberts, Nick Xenophon and Fiona Nash – who were declared elected to the Senate – and Barnaby Joyce who was declared elected to the House of Representatives.

It is quite remarkable that in a nation built on immigration, the Full Court of the Court has been called on to consider the meaning and operation of the foreign citizenship disqualification provisions of s.44(i) on only two previous occasions – Sykes v Cleary in 1992 and Sue v Hill in 1999.

In Sue v Hill the Court split four/three on whether it had jurisdiction.  The four members of the Court who held that the Court did have jurisdiction also found that British citizenship was citizenship of a “foreign” power for purposes of s.44(i).  “British citizenship” is relevant to Fiona Nash and Malcolm Roberts and the possibility of “British citizenship” is relevant to Nick Xenophon but there is nothing to indicate that they or anyone else will be seeking to re-open the Sue v Hill issue in the current proceedings.

All eyes are on Sykes v Cleary – and for good reason.  Unless the members of the current Court find a way or ways to distinguish Sykes v Cleary there is a real possibility that s.44(i) will be found to have disqualified most and possibly all of the seven individuals whose “citizenship” is under scrutiny.

If Mr Joyce was not validly elected then it is likely that the Court will order a by‑election for his seat.  If any of the Senators were not validly elected it is likely that the Court will order a recount of the Senate vote for their States.

Not surprisingly, these possibilities have attracted some close attention and major legal talent.  Over 120 pages of written submissions have been filed and all the cracks have gathered to the fray[1] – the signatures on the submissions include some famous High Court veterans and rising talents.

The submissions are dense with historical research and well crafted and subtle argumentation.  They make for fascinating reading.  [See for example the submissions in Mr Joyce’s matter – with links to the other six referred questions at:  http://www.hcourt.gov.au/cases/case_c15-2017]

I am certainly not going to attempt to predict what the Court will decide.  However, I do offer some observations on just what was established and what was not established by Sykes v Cleary.

Let us start with the text of s.44(i):

44  Disqualification

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; or

…

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

There is no suggestion that any of the individuals currently under scrutiny was:

under any acknowledgment of allegiance, obedience or adherence to a foreign power … 

The concern is with the operation of the second branch of section 44(i) which applies to any person who was:

 … a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power.

In relation to Nick Xenophon there is an issue as to whether the status which he held under British law constituted citizenship for purposes of the operation of s.44(i).  For the other six, next week’s hearing will proceed on the basis that each of these individuals was a citizen of another country under the law of that other country when they nominated and were declared elected.

In Sykes v Cleary the Court had to consider the operation of s.44(i) in relation to two Candidates for election to the House of Representatives: –

Mr Delacretaz who had been born in Switzerland in 1927 and naturalised as an Australian in 1960;

Mr Kardamitsis who had been born in Greece in 1952 and who became naturalised as an Australian citizen in 1975.

Both had lived in Australia for many years.  Both had made formal renunciations of other allegiances as part of their Australian naturalisation processes.

However, despite those renunciations Mr Delacretaz had – under the law of Switzerland – retained Swiss citizenship and Mr Kardamitsis had – under the law of Greece – retained Greek citizenship.

The Case Stated expressly stated that Kardamitsis was unaware when he nominated that he might still hold Greek citizenship and the case seems to have been decided on the assumption that Mr Delacretaz was unaware when he nominated that he still held Swiss nationality in accordance with the law of Switzerland.

It is not expressly stated in the report of the case whether at the time of his birth Mr Delacretaz’s parents were Swiss nationals nor whether at the time of his birth Mr Kardamitsis’s parents were Greek nationals.  However, the absence of any reference to there being any such aspect of their personal histories it seems to be very likely that the parents were citizens of the country in which these candidates were born.

Section 44(i) is an unusual constitutional provision in that its operation by reference to “citizenship” depends on legal status conferred by the law of countries other than Australia.

All seven members of the Sykes v Cleary Court agreed that:

• Ordinarily, common law choice of law principles – which are consistent with international law – recognise citizenship status of a foreign country conferred by the law of a foreign country.
• However, the common law does make some exceptions to this general principle of recognising citizenship status conferred by law of another country.

All seven members of the Court also agreed that – despite the lack of any express limitation in s.44(i)’s reference to an individual being a “citizen of a foreign power” – s.44(i) does not operate to disqualify a citizen of a foreign power if the individual has taken all reasonable steps to divest himself or herself of that citizenship.

There were variations of approach and emphasis in whether this relaxation of the possible operation of s.44(i) was a matter of limiting the extent to which Australian law would recognise that status conferred by the law of the foreign country – a common law choice of law exercise – or was a matter of reading down the express terms of s.44(i) – or some mix of the two.

There were also significant variations in the formulation and application of the “reasonable steps” test.

Only the two dissenting judges – Deane J and Gaudron J – gave weight to the reasonableness of the conduct of Mr Delacretaz and Mr Kardamitsis in relying on their renunciations of foreign allegiances as part of their naturalisation processes.  And only these dissenting Judges gave weight to the fact that both of these Candidates were unaware that they still held foreign citizenship.  These dissenting Judges held that s.44(i) did not disqualify either of these two Candidates.

The five majority judges – Mason CJ, Toohey and McHugh JJ jointly and Brennan J and Dawson J in separate judgments – focussed on whether reasonable steps were available under the law of the foreign countries for divesting citizenship and – if reasonable steps were available – whether those steps had been taken.

These five majority Judges held that s.44(i) disqualified the candidates because:

Reasonable steps were available under the law of Switzerland for Mr Delacratez to apply to be divested of Swiss citizenship as of right and he had not taken those steps;

Reasonable steps were available under the law of Greece for Mr Kardamitsis to apply for an exercise of discretion which could have divested him of Greek citizenship and he had not taken those steps.

This approach might be characterised as a minimalist approach – it minimised the extent to which the usual common law approach of recognising citizenship status conferred by the law of another sovereign state is not followed for purposes of applying s.44(i).

Under the law of Italy – relevant to Matt Canavan – the law of Canada – relevant to Larissa Waters – the law of Britain – relevant to Fiona Nash, Malcolm Roberts and Nick Xenophon – and the law of New Zealand – relevant to Scott Ludlam and Barnaby Joyce – there were reasonable steps available for divesting citizenship.

And each of these individuals has now divested himself or herself of their foreign citizenship status (or possible status in the case of Nick Xenophon).

If Sykes v Cleary stands for the proposition that a Candidate’s lack of knowledge that they hold foreign citizenship will not save them from the operation of s.44(i), then that will be highly problematic for all seven of the individuals currently under scrutiny.

Does Sykes v Cleary stand for that proposition?

When expressing their conclusions on the application of s.44(i) to each of the candidates, the majority judgments in Sykes v Cleary made no reference to the Stated Case “fact” that Mr Kardamitsis was not aware that he had Greek citizenship at the relevant time and made no reference to whether or not Mr Delacratez was aware that he had Swiss citizenship.

Accordingly, the majority decision in Sykes v Cleary at least established that an absence of knowledge by a candidate that he or she held foreign citizenship will not by itself be sufficient to prevent s.44(i) operating to disqualify them.

On the other hand, Sykes v Cleary cannot be taken to have established that the state of knowledge of the candidate is irrelevant to the operation of s.44(i).

In fact all of the majority judges – except Brennan J who made no comment – expressly said that the state of knowledge of the individual was “relevant”.

It is possible that the four majority Judges who said that the Candidate’s knowledge was a “relevant” factor but who held that these two Candidates were disqualified meant that an absence of knowledge would not prevent s.44(i) operating but that the presence of knowledge that a Candidate held foreign citizenship would be a reason confirming the general common law principle that the citizenship status conferred by the foreign law is recognised.

Is there another way to distinguish Sykes v Cleary?

The submissions lodged with the Court on behalf of the Attorney-General include a submission to the effect that:

The Sykes v Cleary version of the “reasonable steps” test – focussing on the availability of divesting processes under the law of the foreign power and ignoring the individual’s lack of knowledge – should be limited to situations where the Candidate was not an Australian citizen by reason of the circumstances of that person’s birth (a natural born Australian citizen), but subsequently became an Australian citizen by naturalisation.

The submissions on behalf of the Attorney-General also propose that:

Where a person is a natural born Australian such a person is disqualified by the relevant limb of s 44(i) only if:

(i) he or she takes an active step to become a citizen of another country; or

(ii) after becoming aware that, according to the law of another country,

the person is a citizen of that country (or after becoming aware of the

relevant prospect that that is so), he or she fails to take all reasonable

steps to renounce that foreign citizenship within a reasonable time

(because, unless such steps are taken, the person can properly be said to

have voluntarily retained his or her status as a foreign citizen) .

If these submissions are accepted, they will go a long way to move most of the individuals who are under consideration away from the operation of s.44(i).  Even the election of Larissa Waters who was born in Canada would be safe on this submission because she became an Australian citizen by descent when she was born.

However, the validity of the elections of Scott Ludlam and Malcolm Roberts would still be in doubt.

The submissions lodged on behalf of Larissa Waters, Scott Ludlam, Malcolm Roberts and Tony Windsor provide detailed responses to aspects of the Attorney-General’s submissions.

I offer the following observations.

It is conventional advocacy to submit that the decisions in Sykes v Cleary and the statements in the majority judgments need to be understood as referring to, and limited by, the facts which were before the Court in that case.

And there is no doubt that Mr Delacratez and Mr Kardamitsis did not acquire Australian citizenship by birth but by later naturalisation.

However, none of the stated reasons of the majority in Sykes v Cleary suggested that there should be a distinction in the application of s.44(i) according to whether a person who held foreign citizenship had acquired their Australian citizenship at birth or by naturalisation.

Furthermore, it is not apparent why the operation of s.44(i) should vary according to whether the individual who holds foreign citizenship acquired Australian citizenship at birth.  Section 44(i) makes no mention of Australian citizenship.

And as I mentioned above, the majority Judges in Sykes v Cleary took an approach which wound back the general common law recognition of citizenship under foreign law to the minimum extent required to prevent foreign law from permanently excluding some Australians from being elected to Parliament.

And it should not be forgotten that the common law’s general recognition of citizenship status conferred by the law of a foreign country is consistent with the international law background.  Brennan J in Sykes v Cleary referred to the common law position that:

If a foreign country purported to confer the benefit of

its protection on and to exact a duty of allegiance from

persons who had no connection or only a very slender

connection with it our courts would be entitled to pay

no regard to such legislation on the ground that the

country in question was acting beyond the bounds of any

jurisdiction in matters of nationality which international

law would recognise.

The readiness of common law to withhold recognition of foreign citizenship where the foreign country had attempted to impose citizenship on persons with no connection or only a slender connection would prevent anomalous operations of s.44(i) if another country mischievously set out to prevent the Australian Parliament functioning by making all Australians citizens of that foreign country.

It is true that all seven members in the Sykes v Cleary court accepted that s.44(i) does not operate to disqualify all persons who hold foreign citizenship and that there must be some reading down of the terms of s.44(i) or some qualification of the general common law acceptance of citizenship status conferred by the law of a foreign country or a hybrid of both of those approaches.

However, the proposal put forward on behalf of the Attorney-General for detailed and different  “reasonable steps” requirements according to whether the individual has held Australian citizenship since birth involves very extensive judicial activism.  Some members of the Court might be willing to take on that role to fill in the cryptic “citizenship” provisions of s.44(i) but some may not.

We will soon know.