what is section 44 of the constitution?

Two Greens senators have been forced to resign from office in less than a week after, oops, discovering they were dual citizens, and thus were not be eligible to be elected in Australia. But how could that even happen? And how could they not know? Who could be next?

Why can’t dual citizens be elected to Parliament?

Section 44(1) of the constitution states that a person who “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” is incapable of being elected as either a senator or a member of the House of Representatives. The High Court case that clarified how this law is interpreted was only in 1992, after a byelection held in Bob Hawke’s seat of Wills ended up being disputed. An independent candidate — footballer and teacher Phil Cleary — won the seat, but ended up losing because he was found to be in violation of section 44 of the constitution. He was caught up because he was on unpaid leave from the Victorian Department of Education, and thus held an office of profit under the Crown. (Cleary later contested the seat at the ’93 election and held it until 1996, when it returned to Labor).

But within that judgment, the High Court found two of the other candidates at the election were also ineligible because of failure to renounce their citizenships to Switzerland and Greece. How a candidate goes about that can vary depending on the country, but the High Court found they should take “all reasonable steps” to renounce their citizenship:

“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.”

Greens senators Scott Ludlam and Larissa Waters’ legal advice has suggested that assuming they were not dual citizens wasn’t enough, and they should have checked with their countries of birth to ensure that they had fully renounced citizenship before running for Parliament.

Until the last week, the issue has only come up three times. In 1987 when Elaine Nile (Fred’s late wife) tried to challenge then-senator Robert Wood’s election on the grounds that protesting against US warships in Sydney made him allied to a foreign power (against a friendly ally in the US). The case was thrown out on technicalities, but Wood ended up having to leave Parliament in 1988 when he realised he wasn’t an Australian citizen when he applied for a passport to visit Fiji.

“Had I been intent on cover-up I would not have fronted up to the front counter of the Department of Immigration, Local Government and Ethnic Affairs, where everybody else fronts up, and said that I had discovered that I am not a citizen, that I am an Australian senator and that I need to become a citizen. I was stunned, as honourable senators will understand, to find that I was not a citizen,” Wood said in Parliament upon discovering his lack of Australian citizenship.

Liberal MP Jackie Kelly was also forced to resign in 1996 after it was found she had dual citizenship. She won the seat back at a byelection after renouncing her New Zealand citizenship.

How could the Greens not know they were citizens of another country?

Ludlam and Waters both came to Australia as children, and both were naturalised. Canadian law changed a week after Waters was born that allowed Canadians access to dual citizenship (the new law was retroactive). Waters claimed she was unaware that this law was in place, and thought the previous law — which prevented dual citizenship — covered her. The question is: why didn’t the Greens go through the proper processes to ensure that all of their candidates were eligible under section 44? This is what the Greens will now be doing, and Greens leader Richard Di Natale said the party would be going through a “root and branch review” of its internal processes that somehow failed to discover that both of the deputy leaders were not eligible to run at multiple elections. Labor’s acting national secretary Paul Erickson has said that the party works with candidates to ensure their election is compliant with the constitution, and he is “confident that every member of the Labor caucus has been properly elected”.

Could Ludlam and Waters run again?

Waters and Ludlam could both go through the processes of renouncing their newly discovered Canadian and New Zealand citizenships and then run again, or potentially fill casual vacancies if their Greens replacements resign. At the moment, neither have given any indication that this is on the cards.

Does this invalidate all the legislation they voted for?

Attorney-General George Brandis said that it had been established in the past that legislation that passed that they voted on would not be invalid as a result of them not ever being elected properly.

Will they have to pay back all the money they were paid?

As with the Bob Day case, the Department of Finance will likely chase back the wage and staffing and other costs they accrued over their time in the Senate, and as with the Day case, it seems likely that the government will opt to waive their costs. Brandis made the point that eligible or not, they did the job while they were in the Senate.

Who else might be caught up?

This oversight by not one but two Greens senators has had the effect of other MPs and senators checking their eligibility, or making it publicly known. Including Ludlam and Waters, there are 25 foreign-born MPs and senators in Parliament (the most recent being Lucy Gichuhi, who confirmed she renounced her Kenyan citizenship when becoming Australian). Tony Abbott, Alan Tudge Mathias Cormann, Malcolm Roberts, Nick McKim, Rebekha Sharkie, Sam Dastyari, Brian Mitchell and Derryn Hinch have all indicated they have given up their non-Australian citizenships. Greens Senator Peter Whish-Wilson has said he does not have dual citizenship.

Other politicians who might be caught up (but are probably much more aware of it) are those who were born in Australia but have held dual citizenship at some point. Labor MP for Braddon Justine Keay tweeted she had given up her dual citizenship before running.