Liberty and justice for all United States persons abroad

The Isaac Brock Society

Posted on by Posted in Citizenship Issues, Issues regarding US persons abroad 71 Comments

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cross-posted from
citizenship solutions

UPDATE 15 AUGUST 2017
Look at this potential list of dual Australian politicians (courtesy of Karen Alpert)

australian politicians potentially dual
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

Shades of
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?


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!!!

John Richardson

Toronto, Canada

Appendix – Australian Constitution S. 44 and some academic commnetary

COMMONWEALTH OF AUSTRALIA CONSTITUTION ACT – SECT 44

Disqualification

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?

71 thoughts on “Citizenship showdown coming: Has Australia ceded control of its sovereignty to foreign countries?”

  1. Barnaby Joyce citizenship: Email that could bring down the deputy PM was sent on August 7

    http://www.theage.com.au/federal-politics/political-news/barnaby-joyce-citizenship-email-that-could-bring-down-the-deputy-pm-was-sent-on-august-7-at-1231pm-20170814-gxvjlq.html

    Avoidable blunders leave Malcolm Turnbull’s government and its wafer-thin majority in jeopardy

    http://www.theage.com.au/federal-politics/political-opinion/avoidable-blunders-leave-malcolm-turnbulls-government-and-its-waferthin-majority-in-jeopardy-20170814-gxvvmn.html

  2. I find this entire thing unbelievable. Is one to believe that now each and every possible dual will be examined simply as a matter of being correct? It seems there are too many from different parties so hard to nail down definite nastiness on the part of one person/group. Though some are probably salivating at the downfall of their rivals……..

  3. To be fair, several of the MPs in the list above have already documented their lack of citizenship in countries other than Australia, especially those born overseas. This latest scalp will make those with non-Australian parents a bit nervous. I’m sure several are scrambling as we speak.

    John Richardson has hit the nail on the head again – Australia is ceding its sovereignty by allowing other countries to determine the status of Australian MPs.

    https://twitter.com/australian/status/890686408762970112

    (tweet leads to a great cartoon showing Kim Jong Un creating a missile with a payload of North Korean citizenship documents aimed at Canberra)

  5. Believe me, I’m sympathetic, but how can citizenship be held to require consent, when most of us receive ours at birth?

  6. Wow, in the update, look at that list of foreign heritages on a parent’s side. Who doesn’t have foreign heritage on a parent’s side? Aborigines of 100% aboriginal origin. Australia will return to its proper rulers.

  7. Some would say that the US is ceding its sovereignty by allowing other countries to determine how much the IRS can extract from US citizens living in other countries via that country’s tax rates. The US gets sloppy seconds. Poor US, they have no say here!

  8. @Bubblebustin is right

    Consider the U.S. objection to the EU forcing Ireland to impose higher taxes on Apple.

    The higher the Irish taxes that Apple pays the larger the foreign tax credit that Apples has against U.S. taxes.

    The larger the foreign tax credit that Apple takes against U.S. taxes, the less tax the U.S. government gets.

    Therefore, from the perspective of the “Jack Lew (Lu)” the “EU” is attacking the U.S. tax base by imposing higher taxes on U.S. companies.

    #YouCantMakeThisUp!

  11. I’m confused.

    Not because of their potential dual citizenship issues, but because I am a US citizen.

    I always thought that when you took a political post to represent others you took an oath to uphold the laws or an oath of loyalty to the nation you got elected to serve….or at least SOME kind of oath of office.

    Isn’t that an expatriating act?

    In other words, if they took such an oath (and I don’t know that they did because I don’t know much at all about Australia’s political system) isn’t that as good a relinquishment as what anybody might do in losing a US citizenship when they take an oath to serve another country by working for an other-than-American government?

    Does their political post not require an oath?

    And if they took such an oath when they first took their jobs, then why is this even an issue?

  12. https://travel.state.gov/content/travel/en/legal-considerations/us-citizenship-laws-policies/citizenship-and-dual-nationality.html among other, says…

    Disposition of Cases when Administrative Premise is Applicable

    In light of the administrative premise discussed above, a person who:

    is naturalized in a foreign country;
    takes a routine oath of allegiance to a foreign state;
    serves in the armed forces of a foreign state not engaged in hostilities with the United States, or accepts non-policy level employment with a foreign government, and in so doing wishes to retain U.S. nationality need not submit prior to the commission of a potentially expatriating act a statement or evidence of his or her intent to retain U.S. nationality since such an intent will be presumed.

    but then says further on…

    Disposition of Cases When Administrative Premise Is Inapplicable

    The premise that a person intends to retain U.S. nationality is not applicable when the individual:

    formally renounces U.S. nationality before a consular officer;
    serves in the armed forces of a foreign state engaged in hostilities with the United States;
    takes a policy level position in a foreign state;
    is convicted of treason.
    Cases in categories 2, 3 and 4 will be developed carefully by U.S. consular officers to ascertain the individual’s intent toward U.S. nationality.

    Also…
    https://travel.state.gov/content/travel/en/legal-considerations/us-citizenship-laws-policies/citizenship-and-dual-nationality/citizenship-and-seeking-public-office.html

  13. Mikey – also, none of the dual citizens in the Australian parliament are American citizens (as far as we know). Most are Commonwealth citizens (UK, NZ, Canada). There’s no reason to expect that the rules around relinquishing citizenship in those countries are the same as US rules. There are two obvious differences – the cost of renouncing is generally around $100-200, not $2350; and there is no exit tax based on simply renouncing citizenship (any exit tax is based on change in tax residence, and non-resident citizens are not taxed on income outside the country).

    In fact, what probably tripped most of them up is that they thought the rules of their other country were the same as Australia’s rules (or Australia’s rules when they were born). This is the real problem. Australia is letting other countries make laws that determine who can sit in Australia’s Parliament. If any country changes its rules (say, to retroactively bestow citizenship), this could make a sitting member of parliament ineligible for his/her job!

  14. “I always thought that when you took a political post to represent others you took an oath to uphold the laws or an oath of loyalty to the nation you got elected to serve….or at least SOME kind of oath of office.
    Isn’t that an expatriating act?”

    Yes, but if she didn’t pay US$2,350 then she didn’t prove to the US that she relinquished, and if she didn’t apply for a US passport then a US consular officer didn’t prove to the US that she relinquished, so the US still considers her a US citizen.

    Does Australia consider every Australian who doesn’t have a US CLN to be a dual national? If not, then maybe she has a way to prove to Australia that she isn’t dual? But if her oath doesn’t do it then how?

    I guess the “her” in my argument is a hypothetical if none of the duals were US … but still, if they don’t have US CLNs, then how do we know know they aren’t US?

  15. Thanks to those who clarified this.

    It’s too bad it’s not that simple.

    I have been keeping up with FATCA and telling others how much it stinks whenever and wherever I can even though I have yet to leave the US even for a vacation. I had hoped to one day relocate and spend my retirement days completely outside the US, but thanks to FATCA it seems a lot harder than before it became law. I refuse to let the US Corporate Congress Critters get me down, but now I have to do things a lot different for it to make financial sense.

    I’m not the only one in my family who dreamed of leaving, either; it was an unrealized dream of my father to go to Canada, even if only for a visit before he died.

  17. Slate stumbles across an interesting principle about involuntary “GOTCHA!” citizenship:
    http://www.slate.com/blogs/the_slatest/2017/08/29/dual_citizenship_crisis_in_australia_barnaby_joyce_nominated_new_zealander.html

    And it’s those who have the most tangential links to other countries who are being caught out by it. Candidates who are aware of their second citizenship regularly renounce. (Two of the past four prime ministers were born in the U.K. and renounced.) It’s those with the weakest connection to their foreign nationality who are losing their jobs.

    Author is apparently an Australian in NYC
    https://twitter.com/rachelrwithers

  19. “Yesterday the Australian High Court ruled that Senator Malcolm Roberts was a dual AU/UK citizen when he was elected.”

    What will happen if a UK court decides to assert UK sovereignty and rule that only UK courts get to decide who’s a UK citizen?

  20. Hmmmmm.

    If a North Korean court rules that Donald Trump is a North Korean citizen, then Donald Trump can still be US president, but he cannot be given US-classified information and US banks can’t deal with him.

  21. @Norman – Senator Roberts was elected in July 2016. Before the election he sent two emails (to non-existent email addresses) asking whether he was still a UK citizen. In late 2016 (well after the election), he formally renounced his UK citizenship using the proper channels.

    So, it would appear that the UK has acknowledged that he was a UK citizen prior to renouncing. At issue is whether Roberts made a sufficient reasonable attempt to renounce UK citizenship prior to the election.

    In this case, Roberts was born in India when it was still a UK colony. He did not obtain Australian citizenship until he was an adult.

    More interesting will be the High Court decisions in the cases of Barnaby Joyce (born in Australia to a NZ citizen father) and Matthew Canavan (born in Australia and granted Italian citizenship by descent as an adult, apparently based on an application by his mother that he did not asset to).

  23. Senator Canavan has changed his story again:
    https://twitter.com/crikey_news/status/913623627408576512

    His lawyer told the court that in fact he was Italian by descent from 1983, after an Italian case led to a change in law.

    “When he was two years old, in 1983, a case was heard in the Italian Constitutional Court which challenged the legislation as being discriminatory and unconstitutional. The court upheld the challenge and as a result the legislation was amended so that citizenship now passed through the male or female lines, again for an unlimited number of generations, and that law was made retrospective to persons born after 1948…”

    (emphasis added)

    So, in 1983 when Italy made this retrospective law, what happened to any sitting Australian legislators of Italian descent? This is a country of immigrants, you can’t tell me that there were none.

  24. The citizenship issue is before the Australian High Court this week:

    http://www.theaustralian.com.au/national-affairs/joyces-case-hangs-on-overcoming-1992-ruling/news-story/53e6130d23e1025bdba753028c398d5c

    http://www.smh.com.au/federal-politics/political-news/natural-australians-shouldnt-face-section-44-disqualification-government-tells-high-court-20171010-gyxs6o.html

    http://www.huffingtonpost.com.au/2017/10/10/barnaby-joyce-reckons-he-never-knew-his-father-was-a-kiwi-citizen_a_23238062/

    http://www.news.com.au/national/politics/mps-citizenship-cases-before-high-court-in-canberra/news-story/2276fa37b922e19a98b2215ba8f1266d

    http://www.theaustralian.com.au/news/latest-news/two-views-on-high-court-citizenship-case/news-story/ed426bc526db82ccad723a4caeba9d6d

    http://www.skynews.com.au/news/top-stories/2017/10/11/seven-mps-to-face-more-high-court-questioning.html

    https://www.theguardian.com/australia-news/live/2017/oct/10/citizenship-case-high-court-considers-mps-eligibility-live

  25. The final day of High Court arguments has been completed. Chief Justice Susan Kiefel says that a decision will be handed down soon – “She indicated the full bench of the court would be prepared to hand down orders without giving its reasons, which would come later.”

    http://www.theaustralian.com.au/national-affairs/malcolm-roberts-my-case-is-stronger-than-the-other-six/news-story/05056e67afdcd6efe8b8cbe32270484b

    http://www.skynews.com.au/news/top-stories/2017/10/12/citizenship-faces-third-day-of-questioning.html

    http://www.news.com.au/national/politics/citizenship-scandalelection-risks-becoming-genealogical-with-hunt-high-court-warned/news-story/c7a911e08224f49ef661419b87eccaf9

    http://www.theaustralian.com.au/national-affairs/taxpayers-hit-with-2m-legal-bill-in-mps-citizenship-cases/news-story/6fe43f68afee957997e17ecdf0b34ee5

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