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DUAL NATIONALITY AND AN AUSTRALIAN REPUBLIC

Dual Nationality and an Australian Republic
by Nick Hobson

References:

  1. The Constitution
    of the Commonwealth of Australia

  2. Coronation of Queen Elizabeth II
    Form and Order of Service on 2 June 1953

  3. Royal Powers Act 1953
    assented to on 10 December 1953

  4. Royal Style and Titles Act 1973
    assented to by the Queen on 19 October 1973

  5. House of Representatives Report
    into Aspects of Section 44 of the Constitution

  6. Communiqué of the Constitutional Convention
    held in Canberra during February 1998


I am willing

1.   The words in the heading above will not mean much to most. Indeed, those words have been uttered by most of us during our lives and as such have no real meaning unless placed into the context for which they were intended. That said, these words do have a significant meaning when placed in the context of the Coronation ceremony of Queen Elizabeth II. For these were the first words that the Queen uttered during that ceremony and signalled her preparedness to take the Oath.

2.  

Amongst other things, the Oath required that the Queen

. . . . solemnly promise and swear to govern the Peoples of the United Kingdom of Great Britain and Northern Ireland, Canada, Australia , New Zealand, the Union of South Africa, Pakistan and Ceylon, and of her Possessions and other Territories to any of them belonging or pertaining, according to their respective laws and customs.

Her Majesty's response of "I solemnly promise to do so" provides, outside of the Australian Constitution and associated Acts of Parliament, the first formal and tangible link between Her Majesty and the Australian people in her capacity as Queen of Australia.

3.   Since then, other Acts of the Australian Parliament have further clarified the powers and role of the Crown within the Australian Parliament. The Royal Powers Act 1953 (relating to the exercise by the Queen of Powers under Acts of the Parliament) and the Australia Act 1986 (relating to Powers and Functions of Her Majesty and Governors in respect of States) have further entrenched the 'Australianess' of the Crown within the Australian parliamentary system. It should be noted here that Section 1 of the Constitution provides that the Australian Parliament consist of the Queen, a Senate and a House of Representatives. Additionally, the Queen is sovereign of the Order of Australia; this Order gains its legality through Letters Patent as issued and amended from time to time by the Queen herself and only in her capacity as the Queen of Australia and not of Queen of some other realm. There are also other aspects of the Queen's personal connection with the Australian people as their Queen such as the Queen's personal flag for Australia which is flown while the Queen is in Australia.

4.   All of the aspects mentioned above provide for a tangible, legal, historic and well established link between the Australian Crown and the Australian people. Additionally, and since federation, various sequential and progressive changes have been made in respect of the Crown, the Governor-General and other aspects as outlined in the Imperial Conferences and the Statute of Westminster 1931 which forms the Schedule to the Statue of Westminster Adoption Act 1942 . The Letters Patent relating to the office of Governor-General of the Commonwealth of Australia and issued by the Queen provides an additional connection. Accordingly, it is fallacious for republicans to claim that the Queen is a 'foreigner' when the role or position of Queen of Australia is an entity in itself. Republicans may wish to rid Australia of the Queen of Australia but will have an uphill battle to rid Australia of a 'British' or 'English' Queen. The Queen of the United Kingdom and Northern Ireland has a different legal entity to that of the Queen of Australia and as such only applies to the people of the United Kingdom and Northern Ireland. Similarly, the role or position of Queen of Australia only has application to the people of Australia and the Australian parliament.

5.   From all of this we can glean that the Queen of Australia enjoys a connection to this country that at the very minimum equals that of newcomers who take out Australian citizenship and also, through their former allegiances or birthright, remain citizens of their former country. Their security of citizenship is just as safe as that of the Queen's role in the Australian parliament. If the Queen of Australia can be legally removed from our system, it ought to be remembered that any Act of parliament, including any Act dealing with naturalization in accordance with Section 51.(xix) of the Constitution, can be repealed or amended by the politicians alone thereby removing or changing any citizenship rights that are now currently held or enjoyed.

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Constitutional Convention

6.   The Constitutional Convention, held in Canberra during February 1998, issued a final communiqué which, amongst other things, resolved:

The Constitution as it now stands (as altered to 31 October 1993)

7.   Section 44 (i.) of the Constitution states amongst other things:

Any person who -

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

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Discussion

8.   At paragraph 2.3 of Reference E , the Committee concluded that ...

Despite the fact that subsection 44(i) was drafted in the particular social, political and geopolitical context of the late nineteenth century, the policy on which the provisions are based remains valid.

The report also included the following Liberal Party of Australia submission:

The intention of section 44(i) is very clear, it exists to ensure that members of the Parliament do not have dual allegiance and cannot be subject to any influence from foreign governments.

Notwithstanding the aforesaid, Reference E (para 2.6) also stated:

To date no member of parliament has been ruled by the High Court to be ineligible to stand for election or to sit in the parliament because he or she was disqualified under subsection 44(i).

That said, the High Court, in the Sue V Hill case, has since found that Mrs Hill, at the date of her nomination for the Senate, was a subject or citizen of a foreign power within the meaning of s 44(i) of the Constitution and, therefore, was unable to sit in the Parliament.

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9.   At paragraph 6, it was noted that the Constitutional Convention resolved:

  • The qualification for the office of President be an Australian citizen qualified to be a member of the House of Representatives (see Section 44 of the Constitution) [Note: Section 44 applies to both Houses of Parliament and not just the House of Representatives],

  • The head of state should be eligible to vote in an election for the Senate or House of Representatives at the time of nomination, and

  • Any future amendments to Section 44 of the Constitution should also apply to the head of state

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10.   The fact the Convention made these resolutions presents many difficulties for republicans. In several strokes of the pen the Convention now requires that any president be an Australian citizen who should be subject to the constraints of Section 44 of the Constitution as it now stands. This means that any Australian citizen who also is eligible for or holds dual or multiple nationality would be unable to become president in an Australian republic. Reference E also stated:

2.23  A significant number of Australian citizens are also dual citizens. Estimates vary, but there are probably three to four million, or possibly up to five million, dual (or multiple) citizens in Australia. The Committee notes that these people may or may not be aware that they are dual citizens. Those Australians are ineligible to be chosen or to sit in the parliament under subsection 44(i).

The report at Reference E also noted:

2.24  Mr Mark Sullivan, Department of Immigration and Multicultural Affairs, explained that one of the difficulties in working out more precisely the number of dual citizens is that it is hard to know how many Australian born citizens are eligible to take up the nationality of their father or parents. 

2.25  An Australian citizen may acquire another citizenship in several ways. 

2.26  First, since Australian law does not require a person to renounce any other citizenship on assuming Australian citizenship, a migrant who acquires Australian citizenship is a dual citizen if the citizenship laws of the other country allow the person to retain that prior citizenship.

2.27  Second, an Australian born person could acquire Australian citizenship by birth and a foreign citizenship by virtue of a parent's non-Australian citizenship. For example, the child of an Australian father and an Irish citizen mother is an Australian citizen by birth and Irish citizen by descent.

2.28   Third, a person who is born overseas could acquire Australian citizenship by descent and another citizenship by reason of being born overseas. Thus a person born in New Zealand to an Australian citizen parent acquires New Zealand citizenship and is generally eligible to register as an Australian citizen by descent.

2.29   Fourth, an adult Australian who acquires a foreign citizenship automatically by operation of the laws of another country will not lose his or her Australian citizenship. This may happen with the acquisition of another citizenship through marriage.

2.30   Finally, an Australian citizen who loses his or her Australian citizenship by reason of acquiring another citizenship may be able to resume the Australian citizenship. The person will have dual citizenship if the other country allows the person to retain that citizenship. 

2.31  The Committee received direct evidence showing that dual citizenship may be easily acquired. One witness with dual citizenship (Australia and Britain) also has an entitlement to Irish citizenship. Another submission described the circumstances of a person with multiple citizenship, The person concerned, an Australian citizen who has lived in Australia for 32 years, since the age of four, acquired one citizenship by birth (United Kingdom) and another by descent (parents came from the Republic of Ireland.

2.32  As Dr Jupp pointed out, under the principle of jus sanguinis, some countries extend citizenship to second, third or even more distant descendants. Examples include Greece (286,941 first and second generation Greeks in Australia), Germany (249,596), Ireland (146,810) and Israel (for all Jews).

Renunciation of a former citizenship is not necessarily straight forward. The report at Reference E summarised this problem thus:

2.40  In summary, subsection 44(i) represents a significant problem for the effective operation of the electoral process, and ultimately, for the operation of the parliamentary system and the wider political system. A large number of Australians is affected by it. Many of those are quite probably unaware that they are disqualified from standing for, or sitting in, parliament by the provision. Second, the steps that are necessary for the purpose of divesting foreign citizenship are unclear in many cases and whether or not any steps taken are effective can only be finally determined by the High Court.

Accordingly, the provisions recommended by the Convention will, more than likely, exclude 3 to 4 million, or possibly up to 5 million, dual (or multiple) citizens in Australia from ever becoming president in an Australian republic. This makes the advertising campaign undertaken by the Australian Republican Movement Pty Ltd prior to, and during, the campaign to elect delegates to the Convention possibly misleading in that it implied that any Australian citizen could become Head of State ( a phrase that is not even mentioned in the Constitution or in any other of Australia's constitutional documents) if Australia became a republic.

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11.   The Constitutional Convention also recommended that any future amendments to Section 44 of the Constitution should also apply to the head of state. However, this may also be problematical for republicans. The report at Reference E recommended that a referendum be held to make the following changes to the constitution:

  • delete subsection 44(i)

  • insert a new provision requiring candidates and members of parliament to be Australian citizens

  • empower parliament to enact legislation determining the grounds of disqualification of members of parliament in relation to foreign allegiance.

The dilemma for republicans here is that, while this proposal may be sensible and effective, it does, nonetheless, 'loosen up' the constitution in that it will provide the parliament with even more powers over which the people will have no further control. Support for such a change was not unanimous. The report at Reference E also indicated:

2.67  The Department of Immigration and Multicultural Affairs (DIMA) was not enthusiastic about the proposal for a constitutional amendment to allow dual citizens to sit in and stand for parliament. Its concern seemed to be directed towards the implications of a strong negative referendum outcome for the wider debate concerning dual nationality:

...depending on how the debate accompanying such a referendum was handled, a strong negative vote could result in confusion about whether the general Australian public should be entitled to hold dual citizenship. Alternatively, a referendum which abolished the requirement for a single citizenship for Commonwealth Parliamentarians could raise expectations about the removal of the current restrictions on Australian citizens acquiring dual nationality.

2.68  Associate Professor Carney leaned towards retaining the existing provision in order 'to protect the integrity of the institution of parliament and its members by avoiding difficulties arising from split allegiance', although he recognised that injustices may arise from time to time. He considered that there may be a negative community reaction if a prime minister were also a citizen of another country. Such a situation could provide the basis for various criticisms of the prime minister. Moreover, Associate Professor Carney observed that the prime minister could be placed in an 'intolerable' position if difficulties developed between Australia and the other country of which the prime minister was a citizen. He believed that similar arguments can be made in respect of ministers.

and was finally summarised thus:

2.74 The case against deleting subsection 44(i) and providing for a simple citizenship requirement (with automatic disqualification if the candidate or member lost his or her Australian citizenship) rests on two bases. First, the necessary electoral support for such a change may be difficult to gain. Second, the proposal to permit persons with foreign citizenship to sit in the Australian parliament may be seen as weakening the standards of commitment to Australia that are currently required from members of parliament.

2.75  The Committee notes that if a referendum to make such an amendment does not win the support of the main political parties it would face certain defeat. It would not be reasonable to hold a referendum unless the probable legislative change were publicised at the same time. A change permitting dual citizens to sit in the parliament might be problematic. The Federal Secretariat of the Liberal Party of Australia submitted that it opposes such a change. The Labor Party considered that this approach is one that may be contemplated some time in the future. For the parliament to pass a referendum bill and for the referendum itself to be successful, those parties would need to support the proposal.

2.76  The Committee acknowledges that the issue of permitting persons with a foreign citizenship to sit in the parliament may cause community concern. Some members of the Committee consider that it would be unacceptable for a minister, and in particular, the prime minister, to hold a foreign citizenship. Even if there were no real conflict of interest, there could be a perception of divided allegiance. Other members considered that the political pressure for ministers to surrender any foreign citizenship would force ministers to do so. Paragraphs 2.66 to 2.69 above are also relevant to the case against the proposed amendment.

12.   It would seem that the possibility of Section 44 being changed as proposed is highly remote given that it is unlikely to gain bipartisan support and because it will, undoubtedly, give more power to the politicians. Australians will be very weary of giving more power to the politicians via a referendum. Any attempt to include this change to the constitution, along with the recommendations listed at Reference F will ensure overall defeat. As it is, the Convention resolved to have the spent and transitory provisions currently contained in the Constitution removed. This additional requirement by the Convention is already clouding the numerous changes sought to the Constitution to make Australia a republic let alone include the proposal to change Section 44.

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Changes to Citizenship Laws

13.   The information contained in this paragraph was supplied by the Department of Immigration in conjunction with a Media Release issued by the Minister on 14 March 2002 in respect of changes to the Australian Citizenship Act:

The Australian Citizenship Legislation Amendment Act 2002 was given Royal Assent on 4 April 2002. That means that Australian citizens who acquire the citizenship of another country from 4 April 2002, will not lose their Australian citizenship.

There are three possible scenarios where a person may be affected by the repeal of section 17.

  • A person who acquires the citizenship or nationality of another country from 4 April 2002 will not lose their Australian citizenship;

  • A person who applied for the citizenship of another country prior to

  • 4 April 2002 but did not acquire that citizenship until 4 April 2002, or after, will not lose their Australian citizenship;

A person who applied for and acquired the citizenship of another country before 4 April 2002 will have lost their Australian citizenship under section 17 of the Act.

Resumption of Australian citizenship for people who have lost their Australian citizenship under section 17 of the Australian Citizenship Act 1948

The repeal of section 17 does not apply retrospectively. When the Australian Citizenship Council reviewed the current legislation, it considered that existing resumption provisions were adequate for those people who had lost Australian citizenship under section 17 of the Act.

A person who acquired the citizenship of another country prior to 4 April 2002 lost their Australian citizenship by operation of law under section 17 at the time they acquired the other citizenship. Those who lost under section 17 of the Act continue to be able to apply to resume their Australian citizenship under the current resumption provisions. Please note that from I July 2002, the resumption provisions include a requirement that the applicant be of 'good character'.

Briefly, to be eligible to resume, an adult must meet the following criteria.

The first requirement is that the person:

  • did not know that they would lose Australian citizenship; or

  • would have suffered significant hardship or detriment had they not acquired the other citizenship.

Other requirements are that the person:

  • has been lawfully resident in Australia for a total of at least two years in their life; and

  • if outside Australia, states that they intend to commence residing in Australia within 3 years; and

  • has maintained a close and continuing association with Australia.

More information on the requirement for resumption of Australian citizenship is provided in Form 132, Loss and resumption of Australian citizenship -Declaration of desire to resume Australian citizenship under section 23AA, 23A or 23B, available from the website of the Department of Immigration and Multicultural and Indigenous Affairs: www.immi.gov.au or www. citizenship.gov.au. Please note that Form 132 will be updated shortly to reflect repeal of section 17 of the Act.

Other key amendments to the Australian Citizenship Act 1948

Other amendments to the Act take effect from 1 July 2002. They are:

  • Extending the age limit from 18 years to 25 years for a person, born outside Australia and whose parent was an Australian citizen at the time of their birth, to register as an "Australian citizen by descent".

  • Providing young former Australian citizens with an adequate period before the age of 25 years to resume their Australian citizenship where it was renounced in order to retain the nationality or citizenship of another country.

  • Providing for children under 16 years who acquire Australian citizenship with their responsible parent (or at a later date) to be given an individual citizenship certificate. Formerly, children under 16 years were included on the back of their parent's application for citizenship.

  • Strengthening aspects of the integrity of the Australian citizenship process.

Further Information

For further information go to: Department of Immigration and Border Protection

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Other considerations

14.   Australians citizens who hold additional or multiple nationality status may also stand to lose that luxury in any Australian republic. Any attempt to write into the preamble and/or covering clauses of the Constitution Act or into the Constitution itself any article that states an equal status for all Australians, as proposed at the Convention , may question the validity of any Australian citizen to hold additional allegiances.

15.   You can have dual nationality, or you can have an Australia where everybody is equal, but you cannot have both these things. Any attempt to allow some Australians to hold dual nationality in a republic would send a clear message to those Australians who do not enjoy that luxury that they do not enjoy equal status. Our current system of constitutional monarchy has ably demonstrated that it is capable of allowing the right for new residents to obtain Australian citizenship while retaining their former allegiances; it fits in comfortably with the concept of the Queen of Australia being sovereign of her several other realms. Dual nationality is an important issue with our new citizens because its provides, for them, a bridge of security while settling into our community and we should not deny them this very special and unique privilege.

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Conclusion

16.   At present, an estimated five million Australians are believed to hold dual, or multiple, nationality. These people should not assume that they would be allowed to keep doing this in an Australian republic, if such a thing came about. Of course, republicans might well say that retaining other countries' citizenship would be permissible. However, this approach is mutually exclusive and morally repugnant to their idea of a republic. It militates against their cause to rid Australia of a 'foreign' queen who has solemnly promised and sworn to govern the Peoples of Australia and of her Possessions and other Territories to any of them belonging or pertaining, according to their respective laws and customs.

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