Parliamentarians’ citizenship status has received vast amounts of media attention this year, with the High Court has ruling Australian Deputy Prime Minister Barnaby Joyce, along with a number senators, ineligible to sit in Parliament. This comes as a result of their respective dual citizenships, which were a contravention of s 44 of the Constitution.
This section prohibits a person who is a subject or citizen or is entitled to the rights or privileges of a subject or citizen, of a foreign country from sitting in the Senate or House of Representatives. Thus, if you are a dual citizen of Australia and another country, you are ineligible to sit in Parliament.
The High Court’s view:
According to Sykes v Cleary (1992), successful renunciation of citizenship from the foreign country is not strictly essential in order to sit in Parliament. Rather, the majority held that the appropriate test is whether the person has taken all reasonable steps to renounce the foreign citizenship. This test acknowledges that renouncing citizenship can be a lengthy and complex procedure which is subject to varying requirements depending on the country.
Mason CJ, Toohey and McHugh JJ considered that when determining whether ‘reasonable steps’ had been taken the Court may take into account the level of connection between the person and the foreign state, the foreign state’s requirements for renouncement and the circumstances of the individual. For example, the UK requires a signed and witnessed application, proof of Australian and British citizenship, along with a fee in order to renounce British citizenship. It is likely that ‘reasonable steps’ in this case would involve completing this process, potentially irrespective of whether it has been formally approved.
Dean and Gaudron JJ, who dissented, took different approaches as to what would constitute ‘reasonable steps’, and the application of the test has remained largely uncertain. To add to the ambiguity, there is still debate as to whether all reasonable steps taken to renounce foreign citizenship must occur before the nomination date for election, and if so, how far in advance.
The Current Situation:
In an effort to avert the citizenship crisis, a new government initiative required both Senators and Members to make a declaration as to their citizenship, their parents’ citizenship status and, if applicable, any steps they have taken to renounce dual citizenship. Following the deadline for disclosure closing, a number of MPs may face referral to the High Court given their questionable citizenship status. There is a pattern of Parliamentarians attempting to renounce their foreign citizenship close to the closing date for nomination for election, and only receiving confirmation after nomination. If such referrals are made to the High Court, it is likely that they will have to consider the time frame in which reasonable steps must be taken.