It’s possible nearly a quarter of Australians can’t run for parliament
Section 44 of the Australian Constitution discriminates against migrants and challenges our democracy.
Like almost half of Australians, I have parents who were born overseas.
I wouldn’t give up my English heritage. I grew up reading British comics like The Beano, thanks to a loving auntie who would post a batch of them every two months. I have visited four times, I would go more if I could.
At my parents behest I got a British passport last year, thinking it might get me a job in the UK, or at least an extended stay with my relatives. But while my heritage might help me get a job overseas, it stops me from getting one job in Australia. And in this case, I can’t even apply.
Section 44 of the Australian Constitution states that any person who is 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”.
This disqualifies all Australian dual citizens from running for the Federal Parliament, for while they are dual citizens they cannot be “chosen” for the job. It’s a serious barrier to participation in our democracy.
But for the moment, some background.
Readers might remember that in 2017 several politicians were felled by this part of our constitution. It started with Greens Senator Scott Ludlam in July, who resigned because of New Zealand citizenship. Greens senator Larissa Waters followed (Canadian citizenship), and Liberal Senator Matt Canavan stepped down from the Cabinet (possible Italian citizenship). One Nation Senator Malcolm Roberts tried to deny his British citizenship, and both the Deputy PM and Deputy Nationals Leader Barnaby Joyce and Fiona Nash, respectively, were dual citizens as well. In October 2017 Liberal Senator Stephen Parry resigned because of dual citizenship, and in November so did Senators Jacquie Lambie, (British citizenship), Skye Kakoschke-Moore (British citizenship), and Liberal MP John Alexander (yes, you guessed it, British citizenship).
The furore extended to speculation over other politicians too. Senator Nick Xenophon was a British Overseas Citizen, a form of citizenship that the High Court found did not breach section 44. Senator Derryn Hinch sought advice from the Solicitor-General due to having a US Social Security Number.
It was characterised as a constitutional crisis by SBS News, and the rapid felling of dual-nationality politicians was reported in the UK’s Financial Times, The New York Times and France’s Le Monde newspaper.
Since then things have mostly quietened down. Prime Minister Malcolm Turnbull referred the issue to a joint committee, with the inquiry report released in May 2018. To date, the government has not responded to the report. Since 2017, MPs have been declaring their citizenship status in a parliamentary register.
But the real problem remains: Dual citizens must pay a higher price than other Australians to run for parliament. It’s discriminatory and will deter some from putting their hand up.
Most political candidates never win a seat, meaning dual nationals risk renouncing their citizenship for nothing — inevitably a big deterrent.
This is especially true for minor party candidates or independents. Labor and the Coalition parties won 96 percent of lower house seats in 2019. Running for a minor party generally means waving the flag, not winning the seat. And for that dual citizens lose the right to live and work in a country with which they hold close ties. It’s too high a price to pay.
Even though the major parties are more likely to win seats, these party members still risk renouncing dual nationality without any appreciable gain. Every party has a process of preselection — choosing who will represent them in each seat. In the larger parties there are many significant preselection battles between party members. In fact, if the seat is safe for a particular party, the preselection in that party is more important than the election itself.
Members will lose their dual citizenship for the preselection process, but in a competitive preselection there is no guarantee they will even be a candidate for election. They might lose their citizenship without even the chance to run for parliament, unless they run as an independent and gain the ire of their former party. So again, a high price to pay for possibly nothing at all.
Chances are, most dual citizens just won’t run for parliament. It’s not worth it. This means less Australians running for parliament, less choice for voters and less political competition. What effect will this have on the level of quality candidates at the next election?
It’s an undemocratic outcome, and a discriminatory one too.
For “the most successful multicultural country on Earth”, according to Scott Morrison, it is bizarre that we penalise migrants for participating in our democracy.
Unfortunately, we don’t know how many Australians are affected by Section 44. Census data has nothing on dual citizenship, and there is no way to make an accurate guess with migrant data because there are wildly different rules on dual citizenship in every country.
In 2000, the Australian Citizenship Council put the number of dual citizens at 4.4 million. That’s about 23 percent of the population at the time. That might be the best estimate we have.
It’s possible that 23 percent of Australians can’t run for federal parliament. Hell, if you count other disqualifications by Section 44, it’s very probably even more. Let that sink in.
Trust in our democracy is decreasing. And while amending Section 44 won’t halt the malaise, it should help. Making it easier for dual citizens to run for parliament will increase competition in our democracy, allowing political parties to preselect better members and voters to choose better candidates. Meanwhile, it will allow for more multicultural voices in our elections, helping migrants feel better represented by Australian democracy.
There may be a justified argument for removing conflicts of interest, like citizenship, before MPs are sworn in, but we should be able to find a solution that isn’t a barrier to political participation. Could a constitutional amendment allow dual citizens to run for parliament, and then require winning candidates to renounce dual citizenship?
But whatever the answer, changing the Australian Constitution is a lengthy, difficult process. So don’t expect it to change anytime soon.