Re Roberts  HCA 39 (22 September 2017), Re Canavan; Re Ludlam; Re Waters; Re Roberts [No 2]; Re Joyce; Re Nash; Re Xenophon  HCA 45 (27 October 2017) and Re Barrow  HCA 47 (7 November 2017)
In three related decisions, the Australian High Court has for the first time ruled on several key aspects of section 44(i) of the Australian Constitution. That section provides:
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 … shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.
In Re Roberts  HCA 39 (22 September 2017) (Re Roberts) and Re Canavan; Re Ludlam; Re Waters; Re Roberts [No 2]; Re Joyce; Re Nash; Re Xenophon  HCA 45 (27 October 2017) (Re Canavan) the Court held that four Senators (Ludlam, Waters, Roberts and Nash), and one member of the House of Representatives (Joyce), were incapable of being elected to the Parliament because they were citizens of a foreign power. The Court also held that two other Senators whose election had been referred to the Court (Canavan and Xenophon) were validly elected and capable of sitting in the Parliament.
Additionally, the Court held that:
- whether a candidate is a foreign citizen is determined by the law of the foreign power in question;
- whether a relationship between a candidate and a foreign power amounts to citizenship must be determined by reference to the rights, privileges and obligations conferred under the law of the foreign power;
- proof of a candidate's knowledge of their own foreign citizenship is not relevant or necessary; and
- where a candidate can demonstrate that they have taken all steps that are reasonably required by the foreign law to renounce her citizenship and within her power, they may nonetheless be validly elected.
In Re Barrow  HCA 47 (7 November 2017) (Re Barrow), the Court refused to give an advisory opinion on whether a person who had begun, but not completed, a renunciation of a foreign citizenship was capable of being elected.
It is expected that the election of a number of further members of Parliament may be referred to the Court shortly for consideration.
Elections and Subsequent Referrals
On 2 July 2016, a general election for the Parliament was held. Following that election:
- On 15 July 2016, Mr Joyce was elected as the member for the seat of New England in the Australian House of Representatives.
- On 2-5 August 2016, Senator Ludlam was elected as a Senator for Western Australia, Senator Xenophon was elected as a Senator for South Australia, Senators Canavan, Waters, and Roberts were elected as Senators for Queensland, and Senator Nash was elected as a Senator for New South Wales; and
- Mr Barrow stood for election as the member for the seat of Warringah, but was not elected.
Subsequently, the elections of each of the above members were referred to the High Court, sitting as the Court of Disputed Returns:
- On 14 and 18 July 2017, each of Senator Ludlam and Senator Waters resigned from the Australian Senate.
- On 9–10 August 2017 and 5 September 2017, the President of the Senate referred each of the Senators (including Senators Ludlam and Waters) to the Court of Disputed Returns.
- On 15 August 2017, the Speaker of the House of Representatives also referred Mr Joyce to the Court of Disputed Returns.
- On 1 September 2017, Mr Barrow sought, and was refused, permission to file a writ of summons seeking declarations as to whether he was capable of being elected.
The referrals were on the basis that questions had been raised as to whether, at the time that they nominated for election:
- Senator Canavan was a citizen of Italy;
- Senator Ludlam and Mr Joyce were citizens of New Zealand;
- Senator Waters was a citizen of Canada; and
- Senators Roberts, Nash and Xenophon, and Mr Barrow, were a citizens of the United Kingdom.
Each of Senators Ludlum, Waters, Nash, and Xenophon, and Mr Joyce, accepted that they were foreign citizens. Senator Canavan ultimately contended that he was not a citizen of Italy.
Prior to the hearing of the Full Court, contested issues of fact related to Senator Roberts were referred to Edelman J to determine whether and to what extent Senator Roberts knew that he was a citizen of the United Kingdom, and whether he had taken steps to understand or renounce his citizenship prior to his nomination.
Mr Barrow did not contest that he was a citizen of the United Kingdom at the time that he nominated for election. However, he gave evidence that he had submitted an application to renounce his citizenship prior to the election, which he withdrew after the election.
In Re Roberts, Edelman J held that:
- Senator Roberts knew at the date of his nomination that he had not become an Australian citizen until May 1974;
- Senator Roberts knew at the date of his nomination that there was “at least a real and substantial prospect that prior to May 1974 he had been and remained thereafter a citizen of the United Kingdom”;
- Senator Roberts could have sought professional advice, or communicated by telephone or email with the UK High Commission in Canberra (he did not); and
- Senator Roberts could have obtained and completed the renunciation declaration form, and returned it with the required fee to the Home Office (again, he did not).
- In Re Canavan, the High Court unanimously held that:
- Senators Ludlam, Waters, Roberts and Nash, and Mr Joyce, were citizens of foreign powers and incapable of being elected to the Parliament; and
- Senators Canavan and Xenophon were not citizens of foreign powers and were capable of being elected.
In Re Barrow, Edelman J refused leave to Mr Barrow to file a proposed writ of summons seeking declarations regarding his candidacy for election, on the basis that what was sought was a purely advisory opinion that was not a justiciable matter for the Court.
1 Re Roberts
Re Roberts was decided as a preliminary question in advance of the hearing in Re Canavan. However, Edelman J’s findings about Senator Roberts’ knowledge of his foreign citizenship at the time he was elected were not ultimately relevant to the decision of the Full Court in Re Canavan.
Justice Edelman’s decision primarily rested on answers elicited from Senator Roberts during cross-examination. Senator Roberts was taken to several documents, including emails sent by him prior to his nomination, which indicated on their face that he believed at the time that he was a citizen of the United Kingdom. Justice Edelman accepted that Senator Roberts was “sincere in his tenacious advocacy of the position to which he committed himself by signing his nomination”, but that “the difficulties in his position … test credulity too far to accept his evidence”.
Relevantly, Edelman J also accepted the evidence of expert witnesses called both for and against Senator Roberts that the emails he sent prior to his nomination could not have been effective to renounce his citizenship, and that there were other avenues open to Senator Roberts to renounce his citizenship.
2 Re Canavan
In Re Canavan, there were four key issues considered and decided by the Court:
- The overall interpretative structure of section 44(i)
- Whether the question of foreign citizenship for the purposes of section 44(i) is determined by foreign law;
- Whether the knowledge of a candidate as to their foreign citizenship is relevant to their capacity to be elected; and
- Whether there were any exceptions to section 44(i) not expressed in the text of the provision.
Section 44(i): General Interpretation
The Court considered that section 44(i) has two limbs, each covering a different category of ineligible candidate:
- First, candidates who have formally or informally acknowledged allegiance, obedience or adherence to a foreign power and who have not withdrawn or revoked that acknowledgment (connoting an act involving the exercise of the will of the person concerned); and
- Secondly, candidates who are in the juridical relationship of a citizen or subject to a foreign power, or entitled to the rights and privileges of such a person, irrespective of whether they have undertaken any act to accept or retain that status.
This division informed the interpretation taken by the Court in relation to specific issues. In particular, the Court considered that the second limb must have been intended to capture persons within that juridical relationship, and not only those who had taken an active step to attain or retain citizenship (who would otherwise be captured by the first limb).
The Court also noted that section 34(ii) of the Constitution required all members of the Australian Parliament to be subjects of the Queen. At the time of Federation, a person who, by voluntary act, became a subject or citizen of a foreign power, ceased to be a subject of the Queen. For the second limb of section 44(i) to add anything to section 34(ii), it would need to extend beyond persons who voluntarily acquired foreign citizenship.
Foreign Law or Australian Law?
The Court upheld previous case law to the effect that, at common law, for the purposes of section 44(i), and as a matter of international law, the question of whether a person is a subject or citizen of a foreign power must be determined according to the law of that foreign power. Accordingly, to determine the citizenship of each of the referred candidates, the Court had regard to expert evidence of foreign legal practitioners (typically senior barristers or legal academics from each of the relevant jurisdictions).
The Court also considered that whether a juridical relationship between a candidate and a foreign power amounts to a citizenship must be determined by reference to the rights, privileges and obligations conferred under the law of the foreign power. It was not sufficient that a foreign power designates a status as that of “citizen” if the ensuing rights do not confer the rights, privileges or duties of a citizen “as that term is generally understood”. In the context of Senator Xenophon, the Court concluded that the designation of “British overseas citizenship”, which carried no rights of residence, and no obligations of loyalty, was not a citizenship for the purposes of section 44(i).
The Candidate’s Knowledge
The Court considered four competing submissions as to the requisite level of knowledge required by the second limb of section 44(i):
- No knowledge requirement, meaning that a foreign citizen would be disqualified whether they knew of the citizenship or not;
- A requirement that the foreign citizenship be voluntarily obtained or retained, in the sense that if the candidate knew that there was a considerable, serious, sizeable, real or substantial prospect that they were a foreign citizen, they would be disqualified;
- A requirement that foreign citizenship be chosen or maintained, in a sense that if the candidate knew, or had constructive knowledge that they were a foreign citizen, they would be disqualified (but not if they were merely wilfully blind); or
- A requirement that the foreign citizen be on notice of their citizenship, in the sense that if the candidate 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 their citizenship, they would be disqualified.
The Court concluded that only the first interpretation was consistent with the text, structure, history and purpose of the provision and the Constitution. The Court considered that any knowledge requirement would be “inimical to the stability of representative government”. They also considered that:
… while it may be said that it is harsh to apply s 44(i) to disqualify a candidate born in Australia who has never had occasion to consider himself or herself as other than an Australian citizen and exclusively an Australian citizen, nomination for election is manifestly an occasion for serious reflection on this question.
The Court upheld an existing exception to the text of section 44(i) that an Australian citizen who is also a citizen of a foreign power will not be prevented from participating in the representative form of government ordained by the Constitution by reason of a foreign law which would render an Australian citizen irremediably incapable of being elected to either house of the Commonwealth Parliament.
The Court endorsed earlier statements that section 44(i) could scarcely have been intended to permanently or unreasonably disqualify Australian citizens from being elected to the Australian Parliament. In that context, the Court contemplated that there may be circumstances where “not only the tenacity but also the inaccessibility of the foreign law was apt practically to prevent an Australian citizen from exercising the choice to participate in the system of representative government established by the Constitution”. However, the Court ultimately conclude that “in none of the references with which the Court is concerned were candidates confronted by such obstacles to freeing themselves of their foreign ties”.
The findings made by the Court in relation to each of the members of the Australian Parliament referred followed straightforwardly from the findings as to the law. Each of Senators Ludlum, Waters, Nash, and Roberts, together with Mr Joyce, were held to be foreign citizens, with the effect that affidavit evidence concerning their knowledge (and Edelman J’s findings as to Senator Roberts’ knowledge) were irrelevant.
In relation to Senator Canavan, the expert evidence filed on behalf of Senator Canavan concluded that the more reasonable interpretation of Italian law was that the administrative steps required for Senator Canavan to be granted the status of an Italian citizen were more than merely declaratory, and amounted to a pre-requisite to the potential citizenship right being activated. The Court concluded it could not be satisfied that Senator Canavan was an Italian citizen on this basis, and that accordingly he was not disqualified.
It is notable that, in directions before Kiefel CJ prior to the hearing, the Solicitor-General submitted (and the Chief Justice accepted) that in relation to Senator Canavan, there were no possible areas of factual controversy requiring a contradictor. This meant that the Court did not receive evidence of any competing views of Italian citizenship law.
In relation to Senator Xenophon, as set out above, his status as a British overseas citizen did not amount to a citizenship for the purposes of section 44(i).
3 Re Barrow
Re Barrow was decided subsequently to Re Canavan. In Re Barrow, Mr Barrow ultimately sought to rely on the obiter dicta discussion in Re Canavan that a foreign citizen was capable of being elected if they have taken all steps that are reasonably required by the foreign law to renounce their citizenship and within their power.
Justice Edelman held that the declaration sought by Mr Barrow fell clearly within the concept of a purely advisory opinion that is not a justiciable matter. Justice Edelman held that the declaration was “abstracted from any real dispute, has no contradictor, and involves hypothetical facts some of which are even unspecified” that “some, or all, of the facts might never arise”, and that it depended on a large number of dependencies and hypotheticals which had not in fact arisen.
However, Edelman J did note that, following Re Canavan, the failure by Mr Barrow to adduce evidence of the relevant foreign law, and the assertions by Mr Barrow as to the content of foreign law in his affidavits, raised fundamental difficulties with his application.
The decision in Re Canavan is significant both in Australian Constitutional history and in the political ramifications of the decision.
- First, the leading decision on section 44 prior to Re Canavan was the decision of the Court in Sykes v Cleary (1992) 176 CLR 77. That decision allowed candidates considerably more latitude in relation to their knowledge of foreign citizenships, and the reasonableness of their steps to renounce any foreign citizenship, than the interpretation favoured in Re Canavan. The case has had significant ramifications, and a number of further members of the Australian Parliament are now in doubt as a result of the decision.
- Secondly, the cost of compliance with section 44(i) is likely to increase for future candidates for election to the Australian Parliament. The Court has made it clear that it is the responsibility of candidates to seriously reflect on their possibly foreign ties prior to nominating. It is also clear that the cost of such consideration may be considerable, and include complex and expensive foreign legal advice. Even then, such legal advice may not be conclusive (as in the case of the evidence led by Senator Canavan), and candidates may not seek advisory opinions from the Court (Re Barrow).
- Thirdly, the decision is likely to discourage candidates with potential links to foreign countries from standing for election to the Australian Parliament, and may also discourage major parties from pre-selecting candidates with links to foreign countries. At the 2016 Census, nearly half (49%) of Australians reported that they had either been born overseas, or one or both parents had been born overseas.
- Finally, it is unlikely that the effect of this decision can be readily undone. The Court is unlikely to reverse its own decision, and has left little scope to narrow the disqualification effected by section 44(i) in subsequent decisions. The possibility of changing section 44(i) has been raised in numerous parliamentary committee reports going back to 1992, but has not been the subject of a referendum. Given the success rate of referenda in Australia, it is unlikely that a referendum to change the decision will be held in the near future.
Nicholas Baum is a solicitor at King & Wood Mallesons