The “intent” of Section 44(i) of the Australian Constitution

Despite apparently solid precedent, Prime Minister Malcolm Turnbull is confident the High Court will find in favour of his at-risk Deputy Prime Minister, Barnaby Joyce. Yet the reasoning the Government is relying on may be misplaced, John Tate writes.

Malcolm Turnbull’s Government, with its slender majority in the House of Representatives, has much hanging on the outcome of a High Court case, due to begin in early October, to determine the eligibility of seven parliamentarians.

One of these is Barnaby Joyce, leader of the Nationals and Deputy Prime Minister. The Government’s one-seat majority means that if Joyce is declared by the Court ineligible to sit in the House of Representatives, the Turnbull Government would be forced to rely on the crossbench for confidence and supply until a by-election determines the fate of Joyce’s seat.

All seven parliamentarians are alleged to have breached section 44 (i) of the Constitution, due to their holding dual citizenship. Section 44 (i) states that 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.”

The High Court has ruled on s. 44 (i) in relation to dual citizenship before, in Sykes v Cleary (1992) 176 CLR 77 and Sue v Hill (1999) 199 CLR 462. In each case, the High Court declared that those holding dual citizenship were ineligible to sit in Parliament.

Yet despite this apparently solid precedent, the Prime Minister appears confident that, this time, the High Court will arrive at a different point of view. At the end of August, the Prime Minister was asked on national television about the “never-ending…citizenship chaos” engulfing Parliament. Turnbull replied that “just speaking for the Coalition Senators and Member, which is Barnaby Joyce of course, we are very confident that the court will confirm that they are qualified to sit in parliament.”

When asked why the Court would rule in the Government’s favour, given apparent precedent to the contrary, the Prime Minister replied that the Government’s confidence was based on the “Solicitor-General’s advice”. The Prime Minister then sought to bolster his position by declaring that s. 44(i) has “never been read literally. The court has always interpreted in a way to realise the intent of the drafters.”

This last statement, where Turnbull seeks to contrast a “literal” reading of s. 44(i) with the “intent” of the “drafters”, is doubly ironic.

Firstly, if the Court did indeed interpret s. 44(i) so as to “realise the intent of the drafters”, it appears this “intent” is consistent with exclusion from Parliament on the basis of dual citizenship, since this was the outcome the Court reached in previous cases.

But the statement is also ironic because if one consults the original constitutional convention debate, wherein the provision was first discussed, it would appear that the “intent” of the drafters was, itself, quite “literal”.

A version of the provision first appeared in the earliest draft of the Constitution and was debated at the National Australasian Convention, held in Sydney from 2 March to 9 April 1891. The clause referred to those who had taken an “oath” or made a “declaration or acknowledgment” of “allegiance, obedience or adherence to a foreign power” or were “a subject or citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power”. It excluded such individuals from “being chosen or of sitting as a senator or member of the house of representatives until the disability is removed by a grant of a discharge”. It also excluded from sitting in Parliament “undischarged bankrupts”, “public defaulters”, those who are “insolvent”, as well as those who are “attainted of treason, or convicted of felony or of any infamous crime”.*

What is significant for our purposes is that when debate ensued at the Convention concerning this provision, the focus was solely on whether the exclusions from Parliament for “treason”, “felony”, or “crime”, were too lenient or too harsh given that, as Australia’s convict past had demonstrated, individuals were capable of reform.

It was, therefore, felons, criminals, and traitors that some within the convention debate were willing to allow in Parliament, once they had served their sentence and paid their debt to society. But none suggested that those who were subjects or citizens of a foreign power be allowed to take their seats.

Malcolm Turnbull’s faith in the “intent” of the founding fathers, when it comes to dual citizenship, would appear, therefore, to be misplaced.

* Official Record of the Debates of the Australasian Federal Convention, Vol. I (Sydney: Legal Books, 1986), April 3, 1891, pp. 655-57.