Throughout all the trials and travails of section 44 of the constitution, tales of phantom New Zealanders — and the possibility that the entire Parliament is invalid — one issue has remained undiscussed and unexamined: whether any potential of breach arises for a number of MPs due to Israel’s “right of return”, which is offered to Jewish-descended people and their spouses. The reason? Politics. The argument? That the right to apply for citizenship does not constitute “the rights or privileges” of citizenship itself.

But that discussion may have to be had if the case of Labor MP Katy Gallagher becomes the subject of a High Court referral. Gallagher has the right to apply for Ecuadorian citizenship, under that country’s 2008 revised constitution. Some of the ever-growing number of citizenship experts say that the “right to apply” does not meet the section 44 standard. However, Mary Crock, professor of public law at Sydney Uni, told The Daily Telegraph, of Gallagher’s case:

“Section 44 … covers both people with a present entitlement, who are currently citizens, but also people who could be entitled to citizenship if they applied,” she said.

“The others (MPs) are being referred and … this has to be referred to the High Court.”

It seems highly possible that this expanded conception would apply to the “right to return” as well. Section 44 is, as we have come to realise, pretty wide-ranging: 

44. Any person who –

(i.) Is under any acknowledgement 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 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.

The key question here is the phrase referring to “rights and privileges of a subject or citizen …”, which suggests that you don’t actually have to be a citizen, you just simply enjoy some of the privileges that would accrue to them.

Now, the “law of return” as promulgated in Israel in 1950, two years after the country’s founding, is pretty unequivocal:

Right of aliyah** 1. Every Jew has the right to come to this country as an oleh.**
Oleh’s visa 2. (a) Aliyah shall be by oleh’s visa.
(b) An oleh’s visa shall be granted to every Jew who has expressed his desire to settle in Israel,
An oleh is defined thus:
**Aliyah means immigration of Jews, and oleh (plural: olim) means a Jew immigrating to Israel.

The law was widened a couple of times, from the traditional definition of someone Jewish — born of a Jewish mother — to include converts, those with at least one Jewish grandparent, and male or female and spouses. Once in Israel on an oleh visa, a full citizenship process is undertaken. People can be knocked back — even if they’re deemed to be Jewish — but they effectively have to be deemed an enemy of the state.

[Poll Bludger: section 44 is a sticky wicket in need of reform]

Now, in its extended form, this is the sort of automatic right that the High Court judgment Sykes v Cleary identified as a problem with 44 — that some forms of citizenship were inalienable, no matter how much you tried to renounce them. Sykes v Cleary concluded that all you had to do was take “reasonable steps” to renounce them; whether the nation in question accepted the renunciation was irrelevant.

Many Western Jews have renounced their “right of return” to a country they consider occupied territory, with a group of UK Jews doing so in, where else, The Guardian. In Australia, Eva Cox and Antony Loewenstein have both publicly renounced their right. So the obvious thing for eligible Australian MPs to do would be to make a similar renunciation, right?

Well, that’s where it gets complicated, because unlike practically any other second citizenship right, renouncing the “right of return” is a political act that runs directly counter to the interests of the politicians concerned. The renunciation carries no absolute force; you could always have a change of heart and turn up in Tel Aviv, no matter what you’d said. But for the three most prominent eligible MPs — Josh Frydenberg, Mark Dreyfus and Michael Danby — such a public renunciation would be a political disaster.

All three hold south-eastern Melbourne seats, with a larger than average Jewish population, and Danby’s seat of Melbourne Ports covers St Kilda and Caulfield, pretty much the centre of Australian Jewish life (and it must be said, of Jewish anti-Zionism).

Frydenberg’s office told Crikey that the right of return did not count as the rights of citizenship under section 44, and Danby’s office said the same, adding: “Michael is not and has never been an Israeli citizen … Michael has never applied for the visa.” Dreyfus’ office did not respond before deadline. 

Other MPs may be eligible, but I don’t propose to run down a list of MPs, picking out people one-quarter Jewish or thus by marriage.

What’s really sticky about all this is that relations between Australia and Israel are one of the places where the question of dual loyalties anticipated by section 44 exactly comes into play. Though governments of both parties have affirmed pretty unstinting support of Israel as part of the Western alliance, Israel’s sometimes adventurist strategies are not always to our advantage.

[Section 44: what you need to know (and the Nats should have)]

Thus, in 2010, Mossad, Israel’s spy/assassination agency, killed Hamas leader Mahmoud al-Mabhouh in Dubai. The agents involved used faked non-Israeli passports, including four fake Australian passports. Essentially, the agency stole the identities of four Australians — all of whom had emigrated to Israel under the aliyah provisions, which is chutzpah on Mossad’s part, I guess — and coined fake documents in their name. Mossad had previously attempted to do this in New Zealand in 2004.

The creation of fake Australian passports, and their use in an assassination in a third country, is an obvious attack on our sovereignty — and one that puts ordinary Australians in greater danger while travelling. Yet there was one MP who thought that though Israel’s act was wrong, expulsion of a diplomat was “unnecessary and an overreaction” and said so in Parliament: Michael Danby, MP for Melbourne Ports.

Now, here’s the wrinkle: had Danby publicly renounced his “right of return”, such a statement would be merely one opinion among many. In the absence of such, does it amount to an expression of “adherence” to another power, whose “rights or privileges” of citizenship Danby enjoys?Danby’s office did not respond to questions as to whether or not he has publicly renounced his “right to return”. We can find no evidence that he has done so.

The question of the “right of return” was explicitly considered as a potential section 44 issue by the Parliamentary Research Service in 1992, after Sykes v Cleary changed the terrain:

“In some situations it may be difficult to determine whether a person is entitled to merely some rights or entitled to the whole package of citizenship rights: for example the right of Jews to settle in Israel under Israel’s Law of Return.” (p.42)

But Professor Kim Rubinstein, of the ANU, doyenne of Australian citizenship tangles, considers that the “right of return” does not create the sort of condition that would involve 44, telling Crikey: “A right to the right is different to the right itself … the Law of Return is distinct and separate to Israel’s citizenship laws and the right to apply for the status is actually not a citizenship right here but a different type of right — it’s a pre-citizenship- style right … Right to apply rather than a right of citizenship.” 

Yes, the question has an ugly side, given ancient prejudiced notions about Jews and national loyalties. But it’s precisely because of such persecution that Israel — and the right of return — was founded. That, in turn, offers some real contradictions that make section 44.i pertinent. Michael Danby will defend Israel practically uncritically under any circumstances; he’s got a right to do so.

But a more pertinent question would be whether the conjunction of “right of return” and Israel’s fairly strong provisions against extradition on criminal matters means that the “right of return” meets the “privileges of citizenship” test. In 2008, for example, Melbourne teacher Malka Leifer fled to Israel after she was accused of sexual abuse by former students. She’s been fighting extradition since she was arrested in 2014.

Would a conjunction of rights offer some MPs a way of avoiding prosecution in criminal matters, related to their MP status? If we can conclude that, then surely that was exactly the situation section 44 was designed to prevent? The onus is obviously on MPs who might enjoy that right to renounce it.

And clearly, we need a full parliamentary audit of all MPs and their eligibility to sit under 44.