UPDATE 15 AUGUST 2017
Look at this potential list of dual Australian politicians (courtesy of Karen Alpert)
Barnaby Joyce is a Kiwi, New Zealand confirms https://t.co/PY5Y9Ps3Ng via @ABCNews – Australia should just refuse to recognize him as a KIWI
— Citizenship Lawyer (@ExpatriationLaw) August 14, 2017
Larissa Waters …
Oh My God! Think of it:
My sources in Australia tell me …
This time it’s the –
Deputy Prime Minister
– and the first member of the lower house to be tainted by dual citizenship. This is significant. With the Senate they usually go to the next person on that party’s ticket from the last Senate election. With the House of Reps they have to have a by-election – and Turnbull’s government is hanging on by a single vote. So, if the High Court rules that Barnaby Joyce must vacate his seat, it could topple the government!
And I thought that Politics in Canada was dirty. And we all revel in the daily stench of the toxic partisanship in the USA. But, hey at least these two countries do NOT have constitutional provisions that (as they have been interpreted) allow other countries to interfere in who the elected representatives are! (We let them interfere in covert ways – think “From Russia With Love” ….)
But Australia. This really is unique. Think of it. Once a person is accused of being a dual citizen – AS DEFINED BY THE LAWS OF ANOTHER COUNTRY – then the person is disqualified from serving in the Senate or the Lower House. I had always thought of Australia as a sovereign country. Can it really be true that Australia allows eligibility for service in the Senate or the lower house to be determined by another country’s citizenship laws? Does it matter whether these “foreign laws” confer citizenship by force rather than citizenship by consent?
Think of the possibilities here. There have always been suggestions that “The USA via the CIA” had been (wonderful melody) instrumental in the dismissal of Australian Prime Minister Gough Whitlam. Why go to so much trouble? The way Australia is interpreting its own constitution, all a future U.S. Government would have to do is confer U.S. citizenship on the Prime Minister of Australia and he would be forced to resign. But this would be the intentional “weaponization of citizenship”. (But, the FATCA is that: the USA would NEVER use citizenship as a weapon now, would it?) Australia has already surrendered much of its sovereignty to the United States through a combination of the FATCA IGA and the “savings clause”in the Australia U.S. Tax Treaty.
It’s worse than you think. The problem extends to the ongoing changes in the citizenship laws of other nations
What about the change in one country’s citizenship laws conferring citizenship on an Australian citizen without his/her knowing about it?
For example, Canada has made significant amendments to its citizenship laws in 2009 and 2016. In both cases Canadian citizenship was conferred on people who did NOT have Canadian citizenship. One example is that prior to 1977, a person born abroad to a married couple where the father was NOT Canadian (say Australian) and the mother was Canadian would NOT have become Canadian by descent. In 2009 people in these circumstances were given Canadian citizenship. What if a person affected by this was in the Australian Senate in 2009 when the Canadian law was changed.
Would that person be forced to resign?
Can the citizenship of country A be forcibly imposed on a resident of country B who has NEITHER ACCEPTED NOR ACKNOWLEDGED THAT CITIZENSHIP?
Who are the other Australian MPs and senators born overseas? https://t.co/1T236lpXH0 via @ABCNews – Citizenship by consent or by force?
— Citizenship Lawyer (@ExpatriationLaw) August 14, 2017
Australians may not be asking this question, but Canadians are asking the question (after all many of them are being accused of being U.S.
citizens!) In a recent post at the Isaac Brock Society, Stephen Kish asks whether “citizenship requires consent”. The post is a great read with interesting comments. Mr. Kish puts the question this way:
Assume that you, a long-time citizen and resident of France, were born in the U.S. and left U.S. at age four hours after birth, never to return AND you never developed any ties (passport whatever) with U.S.
AND never wanted, and do not want, and refuse to accept imposition of U.S. citizenship on your French citizen person — notwithstanding a birth citizenship law of a foreign country (the U.S.).
A lot of people in this post want to define you as an “Accidental American Citizen”, apparently because they feel that this is a useful, easy to digest and understand, term.
But you say: “No way people — I don’t accept U.S. imposition of non-meaningful citizenship that I don’t want and I TELL YOU THAT I AM NOT AN AMERICAN CITIZEN I AM ONLY A CITIZEN OF FRANCE”.
So given the scenario above and your position as a human person, is it accurate or not to say that you are an American citizen?
Does the majority vote that you must defer to a foreign citizenship law that “Trumps” (no pun intended) your right to say no way?
Now back to Australia …
A constitutional provision means what the judges say it means. Is there any possible way that the Constitution of Australia could possibly be interpreted to mean that the USA could bring down the Australian Government by simply declaring the Prime Minister to be a U.S. citizen?
The notion is obviously absurd. Why is it absurd? It’s absurd because Australia would simply say:
“Well, the USA can define him any way that it wants. But we are going to use our own Australian laws to determine whether our Prime Minister is a U.S. citizen. And do you know what? Under Australian law he is NOT a U.S. citizen and that’s that.”
My point is this:
Australia is perfectly free to use its own law to determine whether somebody is a citizen of another country for the purposes of interpreting S. 44 of the Constitution of Australia.
That’s exactly what it must do.
I suggest the the following two principles make sense:
1. To grant a foreign power the right to interfere in the Australian political process is VERY DANGEROUS to Australia.
2. To allow Barnaby Joye, Malcolm Roberts, Larissa Waters and Scott Ludlam (who are expressions of democracy in Australia) to participate in Australian politics is a credit to the nation.
Time for Australia to grow up!!!
Appendix – Australian Constitution S. 44 and some academic commnetary
COMMONWEALTH OF AUSTRALIA CONSTITUTION ACT – SECT 44
Any person who:
(i) 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; or
(ii) is attainted of treason, or has been convicted and is under sentence, or subject to be sentenced, for any offence punishable under the law of the Commonwealth or of a State by imprisonment for one year or longer; or
(iii) is an undischarged bankrupt or insolvent; or
(iv) holds any office of profit under the Crown, or any pension payable during the pleasure of the Crown out of any of the revenues of the Commonwealth; or
(v) has any direct or indirect pecuniary interest in any agreement with the Public Service of the Commonwealth otherwise than as a member and in common with the other members of an incorporated company consisting of more than twenty-five persons;
shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.
But subsection (iv) does not apply to the office of any of the Queen’s Ministers of State for the Commonwealth, or of any of the Queen’s Ministers for a State, or to the receipt of pay, half pay, or a pension, by any person as an officer or member of the Queen’s navy or army, or to the receipt of pay as an officer or member of the naval or military forces of the Commonwealth by any person whose services are not wholly employed by the Commonwealth.
An interesting academic article by Professor Jeremy Gans is here which includes:
Despite the current refrain that the ex-Senators didn’t ‘follow the rules’ (and the High Court’s more recent goal of ‘certainty’
in s. 44’s operation), the effect of s. 44(i) remains quite uncertain.
Describing the reasonable steps test it invented, the plurality in Sykes v Cleary wrote:
What amounts to the taking of reasonable steps to renounce foreign nationality must depend upon the circumstances of the particular case.
What is reasonable will turn on the situation of the individual, the requirements of the foreign law and the extent of the connection between the individual and the foreign State of which he or she is alleged to be a subject or citizen. And it is relevant to bear in mind that a person who has participated in an Australian naturalization ceremony in which he or she has expressly renounced his or her foreign allegiance may well believe that, by becoming an Australian citizen, he or she has effectively renounced any foreign nationality.
The Labor and Liberal candidates held disqualified in Sykes v Cleary had each spent decades living and travelling on their birthplace passports before they immigrated to and became naturalised as Australians. The Ludlam and Waters cases could have been an excellent opportunity to test whether a ‘connection between the individual and the foreign State’ that consists only of birth and brief, infant residence, and the ex-Senators’
apparent beliefs (at least when they were naturalised) that they had no foreign citizenship at all, mean that no further steps to relinquish citizenship (even the mild ones required by NZ and Canada) are necessary. Alas, the ex-Senators (or, more likely, their party) have seemingly judged that the political costs of litigating that question now are too high.
I sense a “citizenship showdown” is coming in Australia. The question is:
Who decides whether an Australian is eligible to be a member of the Australian Senate or lower house! Is Australia a master of its own destiny?
Now Turnbull is demanding that Rebekha Sharkie refer herself to the High Court (http://www.abc.net.au/news/2017-11-09/turnbull-questioned-rebekha-sharkies-citizenship-status/9135114). She was born in the UK, but her mother is a US citizen (fortunately for Ms Sharkie, her mother left the US at age 11 and could not transmit the most toxic citizenship on the planet).
My understanding of the previous decision on sec. 44 is that a person just needs to make a reasonable effort to renounce. She sent in the form and paid the fee to renounce UK citizenship in April 2016, was nominated for Parliament in early June 2016 (after receiving confirmation that her application was received), and received confirmation that her renunciation had been accepted in late June 2016 (still before the election). If that’s not a reasonable effort, then what is?
The court case has a chance of helping. The court could rule that the time for checking compliance is when the election is held and/or when Parliament sits.
Will PM Turnbull’s head be next on the citizenship chopping block?
Now it’s just getting ridiculous!
Even Patrick Dodson, an Aboriginal advocate and ‘father of reconciliation’, is answering citizenship questions via abc.net,au
Anyone who has enough savings to buy a house in a citizenship-for-sale country is eligible for that second citizenship. So Parliament won’t be turned over to aboriginals; it will be turned over to the poor. Not a bad result.
You even have to check your spouse’s genealogy/citizenship to run for the Australian Federal Parliament!
Citizenship crisis: Turnbull government MP Nola Marino may be an Italian citizen by marriage
Australian MPs were required to document their citizenship and that of their parents and grandparents. Results were released yesterday (Tuesday) and several more MPs may be referred to the High Court. Several applied and paid for renunciation of their UK citizenship before nominating for Parliament, but the UK didn’t get back to them with formal approval/documentation (CLN-equivalent) until later, sometimes months later (sound familiar?). I don’t see how the court can rule that they have not taken “all reasonable steps” when all they are waiting for is for a foreign bureaucracy to process some paperwork. In a few days we get similar documentation from all Australian Senators.
Some recent articles:
Citizenship saga: Every foreign link to your MPs and whether they’ve shown proof
Australia has lost nine Senators and two members of the House of Representatives since the July 2016 federal election.
The Australian government is investigating whether a one-size-fits-all renunciation method could be applied to all foreign citizenship cases
“The Australian government is investigating whether a one-size-fits-all renunciation method could be applied to all foreign citizenship cases”
Let’s hope so, and let’s hope the fee will be less than US$2,350.
An interesting article on the source of the Australian constitutional provision that lead to our “Citizenship Crisis” – How the Australian Constitution, and its custodians, ended up so wrong on dual citizenship: https://theconversation.com/how-the-australian-constitution-and-its-custodians-ended-up-so-wrong-on-dual-citizenship-91148
Foreign governments could get up to some real mischief with this Sec 44 if they wanted to take a key politician out, couldn’t they?
Typical of lawmakers in their paranoia and mistrust end up making their country vulnerable to what they wish to avoid in assuming other countries would want to infiltrate or manipulate their political system. They’ve given them a way to do it, potentially.
“Foreign governments could get up to some real mischief with this Sec 44 if they wanted to take a key politician out, couldn’t they?”
This story is about an Australian MP who can’t renounce her UK citizenship because she is unable to get access to the document that proves she is eligible for UK citizenship!
The simplest way? It doesn’t sound simple at all. I wonder, does he just mean that candidates should be “deemed” to have renounced, provided they’ve made an effort?
The most straightforward way would seem to be, change the constitution to allow for the reality, rather than adopt the American approach and deem reality to have been changed so that it fits the constitution.
An Australian law that allows any Australian to renounce all non-Australian citizenships seems pretty simple to me. The person doesn’t even have to run for office. The person could use it to escape a plantation.
Once upon a time, Canadian citizenship didn’t exist. Canadians were British citizens.
Next, Canadian citizenship existed. But Canada didn’t allow dual citizenship. Any British citizen who became a Canadian citizen lost their British citizenship, right?
Did Britain pass a law depriving British citizens of British citizenship at the convenience of the Canadian government? Or did Britain not pass such a law? More precisely, in which manner did Britain cede its sovereignty?
“An Australian law that allows any Australian to renounce all non-Australian citizenships seems pretty simple to me.
If I understand correctly the “Conversation” article Karen linked to, the troublesome wording rules out candidates who are “entitled to” a non-Australian citizenship. Country A can’t effectively declare an individual to have stopped being entitled to citizenship of Country B. The individual can be deemed by Country A to be no longer entitled to the citizenship of Country B, but they’ll still be entitled unless/until Country B changes its rules.
An Australian law that allows any Australian to renounce all entitlements to non-Australian citizenships seems pretty simple to me. It might even be simpler than renouncing citizenships, because an entitlement can be renounced without even knowing if the citizenship exists.
Citizenship drama flares again, with four MPs and one senator on the way out after High Court ruling
I find it troubling that eligibility to participate in the democratic process in Australia depends on the bureaucratic efficiency (or lack thereof) in another country.
Cost of dual citizenship fiasco to top $20 million as byelections pile up
15 victims down and counting!
“In its judgment, five of the Justices said the case could be boiled down to two key issues — the finding was that British law did not make it impossible to renounce dual citizenship,”
Right, British law didn’t make it impossible, but British bureaucrats made it impossible to get timely results.
“and that individuals could not blame delays in the bureaucratic process to renounce their citizenship as a reason to avoid the constitution’s dual-citizenship ban.”
Someone remind me how the individual is supposed to get timely results. Does Australia have a copy of the US’s second amendment, and does Australia give diplomatic immunity to an individual who has to use Australia’s copy of the US’s second amendment during a trip to Britain?
Oh wait, these weren’t five justices, they were five Justices. In any conflict between justice and Justice, Justice wins because justice can’t get a lawyer.