At the time the constitution was enacted, only Senator Canavan's Italian citizenship would have triggered the disqualification in section 44(i). Being born in Britain, Canada or New Zealand would have simply made a person a subject of Queen Victoria and therefore not a citizen of a foreign power.

The High Court decided in 1999, however, that at least since 1986, Britain is a foreign power for the purposes of section 44. Canada and New Zealand fall into the same category.

Hence, without any constitutional amendment, the scope of the provision has changed, excluding those who have citizenship from countries that were originally all under the one Crown.

Given that the High Court is unlikely to reverse its 1999 finding, what else might it do to deal with the situation?

Types of citizenship

It could seek to distinguish citizenship by descent as being too remote to trigger section 44, in contrast to citizenship by birth and citizenship that a person takes active steps to acquire. But this would seem to undermine the point of the provision.

Why should a member of Parliament who inherited foreign citizenship from a parent be allowed to keep it, while other members who acquired citizenship by birth would have to renounce it? Surely the constitutional mandate of sole allegiance to Australia should apply to all.

The court could also take into account ignorance of entitlement to dual citizenship, on the ground that there could be no conflicting allegiance if a person's other citizenship was unknown.


But this would simply encourage politicians to turn a blind eye to their citizenship status in the hope of holding on to other citizenship rights.

It would also lead to timing problems – what if you were validly elected because you were ignorant of your dual citizenship at the time, but then became aware of it? Would you lose your seat as soon as you found out? What degree of knowledge would be necessary to dispel ignorance?

One helpful thing the court could do would be clarify the timing issues. The constitution disqualifies a person at the point when he or she is "chosen". In 1992, the High Court held that the process of being "chosen" covers the entire period from the nomination date to the date of the return of the election writs.

Potential difficulties

This gives rise to all sorts of potential difficulties, particularly if a disqualifying event, such as a conviction, occurs within that period and is then quashed within that period. It would be more logical and practical to fix on a particular date, such as when the writs are returned declaring a person to have been elected.

If that were the relevant date, candidates who appear to have been elected would have time between polling day and the return of the writs to rid themselves of disqualifying attributes, such as holding an office of profit under the Crown.

Finally, the court could do the obvious. It could strictly apply section 44 of the constitution and say to the politicians that they can either take more rigorous steps to ensure that they comply with it, or they can initiate a referendum to change it.

Anne Twomey is a professor of constitutional law at the University of Sydney