The Purpose of Section 44(i)

27 September 2017

The Purpose of Section 44(i)

Now that the High Court prepares to hear cases concerning the dual citizenship status of seven current and former parliamentarians, it is important to reflect on the reasons why section 44(i) of the Australian Constitution exists. What exactly is it meant to prevent? Is it doing its job?

Lessons from the United States Constitution

To provide context for section 44(i), it is helpful to compare it to similar provisions in the constitution of another former colony that drafted its founding document under the influence of the British legal system — the United States.

The United States Constitution makes three main references to allegiance and citizenship in its qualifications for elected officials. For Congresspersons, Members of the House of Representatives must have been citizens of the United States for seven years, and Senators for nine years. For the President, only natural born citizens are eligible for election to that office.

Citizenship was a primary concern during the US Constitutional Conventions of 1787. The main question to be resolved was: should foreigners be allowed in government?
The concerns fell into two areas. The first was concern over allowing “foreigners and adventurers [to] make laws for us and govern us” — that is, permitting immigrants without an understanding of the American institutions of government to serve in them. Pierce Butler argued that immigrants “bring with them not only attachments to other countries; but ideas of government so distinct from ours that in every point of view they are dangerous.” The second concern related to the national security implications of having officeholders with a vested interest in or allegiance to another nation. In the words of Charles Pinckney: “As the Senate is to have the power of making treaties and managing our foreign affairs, there is peculiar danger and impropriety in opening its door to those who have foreign attachments.”

These concerns resulted in the introduction of the seven- and nine-year residency requirements. More severe solutions were proposed, but it was felt that blanket restrictions on those of foreign nationality would be unduly oppressive. This was summarised best in The Federalist Papers No 62: the term of residency was considered a good compromise between “total exclusion of adopted citizens, whose merits and talents may claim a share in the public confidence” on the one hand, and “an indiscriminate and hasty admission of them, which might create a channel for foreign influence on the national councils” on the other.

The natural-born citizen requirement for Presidents of the United States drew on these concerns, with the addition of the notion expressed in a letter from John Jay to George Washington that it would be a good idea to restrict command of the American armies to “any but a natural born citizen”. It was reasoned that a natural-born citizen, being a person who at birth is entitled to be an American citizen, would be raised with such a connection to and knowledge of the United States that they would understand and uphold the American paradigm.

Section 44 (i)

The perceived problem of potential foreign influence on the institutions and policy of the US Government was solved by requiring officeholders to have lived in the country for minimum periods of time and, in the case of the President, ensuring only those with a connection to the country at birth would be eligible. Simple!

But how was it different for Australia?

The short answer is that it wasn’t. The Australasian Federation Conferences of the 1890s also had to contemplate the spectre of citizenship, and dealt with it in much the same way, covering the two main issues of familiarity with Australian institutions and the national security risk that foreign nationals in government could pose.

Familiarity was dealt with on 2 April 1891, in debate on Clause 15 — the proposed qualifications for Senators. One such qualification was residence in the Commonwealth for at least five years. Thomas Macdonald-Paterson objected to the five year residency: “you cannot convert a new chum into an Australian” in five years, he argued. Arthur Rutledge directly referenced the nine-year residency period in the US Constitution, raising concerns that, without the qualification of residency, “a man might come here and, without any knowledge of, or any particular sympathy with, our institutions, would be eligible as a member of the Senate.”  This led to the five-year residency requirement for parliamentarians found in section 34 of the Australian Constitution.

However, it was uncompromising national security concerns that led directly to Section 44(i). Noting the presence of German colonists in Australia, John Hannah Gordon asked if Section 44(i) should apply if the person with a foreign allegiance had since been naturalised in Australia.  This was rebutted out of hand. Concerns were raised by Sir George Turner that such a person could be Minister of Defence. Patrick McMahon Glynn said: “You cannot have two allegiances.” Even inaugural Prime Minister Edmund Barton was against it. No further substantive debate was had on the issue — it was simply accepted that someone with dual citizenship would continue to pose a risk to the conduct of national policy, even if naturalised.

Like the United States, it was seen as unacceptable to have people running the country without understanding of the country, or with influence resulting from foreign allegiance. The first was dealt with. The second was a line that couldn’t be crossed — it must have been impossible to think that someone who still was nominally a citizen of another nation could ever have the impartiality or understanding to serve in the national Parliament.

The current predicament

Given this, it’s hard to see how the current cases before the High Court are anywhere near the threat that section 44(i) was meant to prevent. For instance, Barnaby Joyce has never lived anywhere but Australia, and Senators Ludlam and Waters were children when they emigrated. We could hardly call them subservient vessels of a foreign power.

The High Court’s previous rulings on the operation of section 44 tried to reflect this in its ruling in Sykes v Cleary, where politicians who have made reasonable efforts to renounce their “allegiance” (dual citizenship) were safe. But cases like the ones before the High Court, where renouncing wasn’t done because the politicians didn’t even know they were foreign citizens, shows the gaps that cases can still fall through.

The issue at the heart of this section 44 debacle is whether citizens — for all intents and purposes ones whose allegiance is only to Australia — should be disqualified for the technicality of dual citizenship. It will be up to the High Court (or, if worst comes to worst, a future referendum) to decide whether this stringent standard should be upheld in the multicultural world we live in today, where so many of our politicians were born overseas.