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Is Australia headed for another citizenship saga?
Kelly Burke
Wednesday, 10 July 2019 3:12 pm
Bill Shorten, Jacqui Lambie and Chris Bowen are among a list of more than two dozen politicians who may not be eligible to sit in the Australian parliament.
Legal academics in Western Australia have put the constitution under the microscope and concluded that 26 MPs and senators may fall foul of the nightmarish Section 44(i).
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The section disqualifies anyone who holds allegiance to a foreign country from sitting in the federal parliament.
While much of the attention during the 2017-2018 political crisis that claimed 15 scalps centred on the section's second criteria -which covers the issue of dual citizenship - the third criteria went largely unnoticed.
'Right of abode' in UK
This disqualifies anyone from sitting in parliament if they are entitled to the rights and privileges of citizens of a foreign power.
This means that Australians born before January 1, 1983, to a British parent, probably still hold a 'right of abode' in the United Kingdom - which confers almost all the rights and privileges of a full British citizen.
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'We seem to have only scratched the surface.'
"While many Australians perhaps hoped that multiple High Court decisions and resulting by-elections would mean that the country could put the parliamentary eligibility crisis behind it, instead we seem to have only scratched the surface," says legal academic Lorraine Finlay.
Finlay is co-author of the paper But Wait...There's More: The Ongoing Complexities of Section 44(I), published in the University of Western Australia Law Review.
At the very least, says Finlay, the third criteria is "significantly more ambiguous" than the second.
And she says it would be up to the High Court to determine if the rights conferred on an Australian holding a right of abode in the UK are significant enough to create an "imputed sense of allegiance".
Any member of a Commonwealth nation, who holds the right of abode in the UK, is free to enter and exit the UK "without hindrance", as well as to work, study, apply for welfare, vote and stand for public office in the country.
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Finlay says it is interesting to note that the rights afforded to European Union citizens in the UK are "distinct" and lesser than those afforded to Commonwealth Citizens with the right of abode in the UK.
After examining the parliamentary citizenship register, Finlay concludes there are at least 26 current parliamentarians who potentially could have the right of abode in the UK, based on the information they have provided on their British family history.
Australian politicians dual citizenship list
Bill Shorten (Vic), Chris Bowen (NSW), Mark Butler (SA), Nick Champion (SA), Lisa Chesters (Vic), Pat Conroy (NSW), Alexander Gallacher (SA), Katy Gallagher (ACT), Andrew Giles (Vic), Madeleine King (WA), Susan Lines (WA), Brian Mitchell (Tas), Louise Pratt (WA) and Glenn Sterle (WA).
John Alexander (NSW), Angie Bell (Qld), Ben Morton (WA), Dean Smith (WA) and Alan Tudge (Vic).
George Christensen (Qld), Patrick Conaghan (NSW) and Perin Davey (NSW).
Adam Bandt (Vic) and Rachel Siewart (WA).
One Nation's Malcolm Roberts (Qld) and independent Tasmanian senator Jacqui Lambie.
Challenge unlikely
For any of the above to be ruled ineligible, they would have to be challenged in the parliament and referred to the High Court.
With 14 under a cloud, it's safe to assume Labor will let sleeping dogs lie.
And while a challenge could be to the coalition's advantage, the Liberals and Nationals might feel the brunt of a backlash if it forces voters back to the polls for another slew of by-elections.
Finlay concludes that an examination of eligibility in light of the Commonwealth right of abode is therefore unlikely to go any further.
"(But) it demonstrates that there may still be a significant number of current Australian parliamentarians who are not actually eligible to sit in the parliament," she says.
"Clarifying the scope and reach of section 44(i) is essential to maintain public confidence in the legitimacy of the current Australia Parliament, and also to avoid uncertainty with regards to future elections."
Contact Kelly Burke at kburke@seven.com.au
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