In all cases, they can be traced back to the Act of Settlement of 1701. It said no person born outside of the kingdoms of England, Scotland, Ireland or their dominions was capable of being a member of either house of Parliament. It still operates to exclude "aliens" from being elected to Parliament in Britain, but a person can be elected to Parliament if he or she is a British citizen, a citizen of the Republic of Ireland or is an eligible Commonwealth citizen, which includes citizens of Australia if they have certain residence rights in Britain.

In contrast, in NSW, while there is no requirement that candidates for Parliament be Australian citizens, they must be entitled to vote. That means they must either be Australian citizens or British subjects who were enrolled to vote in federal elections before January 26, 1984, and have maintained their enrolment since. A British citizen can therefore be a member of the NSW Parliament while not holding Australian citizenship. Having a foreign allegiance does not disqualify him or her either. This is because the NSW constitution allows dual nationals to stand for Parliament and only disqualifies them if they obtain a foreign allegiance after being elected, presumably because the voters have not been able to have their say on the issue. Most other states have similar laws concerning allegiance to those in NSW.

Strict requirements

It is at the federal level in Australia where the requirements are most strict. This may be because having foreign allegiance is most likely to be a concern in relation to federal matters such as foreign affairs, defence and foreign trade. Section 44(i) of the constitution disqualifies a person from being chosen or sitting as a senator or member of Parliament both when he or she actively acknowledges allegiance to a foreign power and when, passively, he or she "is a subject or a citizen" of a foreign power or "entitled to the rights or privileges of a subject or a citizen of a foreign power".

The current controversy concerns the passive application of Section44(i), being a citizen without even knowing it. Interestingly, this was not how the provision was originally drafted. The 1897 version said: "Any person who has taken an oath or made a declaration or acknowledgment of allegiance, obedience, or adherence, to a foreign power, or has done any act whereby he has become a subject or a citizen, or entitled to the rights or privileges of a subject or a citizen, of a foreign power" shall be incapable of being chosen or of sitting as a member or senator. Under this draft clause, the person must actively take steps to obtain a foreign allegiance before disqualification can occur. If this version had prevailed, none of the people referred to the High Court would have had a problem.

But the draft clause was altered in 1898 by the drafting committee as part of a consolidation of existing clauses. In doing so, they changed the provision from an active to a passive application, unwittingly causing a large number of parliamentarians more than a century later to face potential disqualification. It is unclear if this was intentional, but the change was nonetheless made and cannot be ignored.

The case of dual citizenship and the right to sit in Parliament is far from clear, meaning this will be a long, slow process. Andrew Meares

The law of the relevant foreign country


While there have been few cases on the subject, the High Court has reached four critical conclusions on the interpretation of section 44(i). Firstly, even though in 1901 a person born in Britain, Canada or New Zealand would not have been regarded as holding a foreign allegiance, that is no longer the case. As Australia is now an independent country, Britain, Canada and New Zealand are all foreign powers and their citizens owe a foreign allegiance.

Secondly, citizenship of a foreign country is determined by the law of that country, not by Australian law. Hence, enacting an Australian law that says a person renounces all foreign citizenship is not sufficient. Candidates must act to rid themselves of foreign citizenship under the law of the relevant foreign country.

Thirdly, the date at which a candidate must have renounced all foreign allegiance is the date of nomination to stand for Parliament.

Finally, if a country prohibits its citizens from renouncing their citizenship, then this does not bar them from ever being a member of the federal Parliament. In those circumstances, it is enough to take all reasonable steps to renounce the foreign citizenship, even if they are not accepted.

Earl Grey lived in London, never visited Australia, yet was elected to the New South Wales Legislative Council in 1848. Dual citizenship has been a controversial issue for a long time. Supplied

Seven members and senators have either been referred to the High Court, as the Court of Disputed Returns, or are awaiting referral. All of them maintain they had no knowledge of their foreign citizenship at the time they nominated to stand for Parliament. They fall into a number of categories. The two Greens, Scott Ludlam and Larissa Waters, had citizenship by birth in New Zealand and Canada respectively. Knowing they had been born overseas, they were on notice that foreign citizenship was an issue and should have checked and renounced it before nominating as candidates. Malcolm Roberts was also born overseas, in India to a Welsh father. He asserts he took steps before nominating as a candidate to renounce any foreign citizenship but, depending on the facts, he may not have complied with the procedural requirements for renunciation and his foreign citizenship may not have been renounced in time.

Foreign citizenship is applied automatically

The four other members and senators had citizenship by descent because at least one of their parents had foreign citizenship at the time of their birth. In the case of Barnaby Joyce and Fiona Nash, that foreign citizenship applied automatically without the need for any further act. Matt Canavan falls into a separate category, as a positive action was needed to register his Italian citizenship, although he asserts this action was taken without his knowledge and consent when he was an adult. Nick Xenophon also falls into a separate category because the nature of his British Overseas citizenship provides so few of the ordinary entitlements of citizenship that it can be argued it does not amount to "citizenship" at all for constitutional purposes.


The High Court will therefore have to deal with a cornucopia of differing facts and potential legal distinctions. Some politicians may survive and others may fall, depending on what weight the High Court places on actual knowledge, constructive knowledge, if all reasonable steps have been taken to renounce, the timing of renunciation and the nature of the citizenship rights conferred.

It is doubtful the High Court would accept that ignorance of dual citizenship is enough to avoid disqualification. While it is certainly arguable that the purpose of the provision is to avoid conflicting allegiance and one cannot have a conflict if one is not aware of having dual citizenship, this would appear to reward those who put their head in the sand and neglected to check their citizenship status before nominating. The media investigations into the citizenship status of members of Parliament have revealed some did make the effort to find out they had citizenship by descent and took the required steps to renounce it, while others simply failed to do so. It is therefore a weak argument that it is unreasonable to expect a candidate to anticipate and deal with the possibility of dual citizenship, when many others in equivalent circumstances have dealt with it effectively. The problem here is really one concerning the rigour of party nomination procedures, rather than a constitutional problem.

The word 'chosen' is not very precise

Nonetheless, there are difficulties with the interpretation of section 44 of the constitution that can fruitfully be addressed by the High Court. One is the time at which disqualification occurs. Section 44 says a person who is a subject or a citizen of a foreign power "shall be incapable of being chosen or of sitting as a senator or member of the House of Representatives". The word "chosen" is not very precise. It can refer to when voters do the choosing, which is primarily on polling day. It can refer to when the poll is declared, being the point at which the Electoral Commission formally announces the outcome in each seat. It can be when the election writs are returned, certifying who has been elected.

In 1992, the High Court held that being "chosen" is an entire process, which starts from the date of nomination. But as the High Court recently noted in the case concerning the disqualification of Rodney Culleton, this can lead to problems. For example, if Culleton's conviction for stealing the key of a tow-truck had occurred before his nomination, but had been quashed or annulled by a court between nomination and polling day, then he would have been both disqualified and qualified at different times while in the course of being chosen. It would be preferable for the critical point for disqualification to be confined to a particular date, rather than lingering over a long period. A good argument can be made that the actual time of being chosen is when the writs are returned as, without this formality, a person cannot be sworn in or sit as a member of Parliament. This would mean that anyone elected would have a short period of time to remove all disqualifying factors before formally being chosen and taking up office as a member or senator.

The court could also clarify that, for the purposes of the timing of renunciation of foreign allegiance, it is enough that the candidate takes all reasonable steps before being chosen. It should not be necessary to await the certification of renunciation by the foreign country, as a person's disqualification from Parliament should not depend upon the efficient, dilatory or perverse behaviour of the bureaucracy in another country.

Foreign law is often difficult to ascertain

It is also possible that the High Court may revisit the question of whether reliance should be placed on foreign law to determine foreign citizenship, or whether it can be resolved by Australian law for Australian constitutional purposes. Foreign law is often difficult to ascertain, interpret and even translate. It can easily be changed without persons in Australia being aware of it. It is not inconceivable, for example, that a person who wishes to nominate for Parliament diligently checks to ascertain if he or she has foreign citizenship by birth or descent and find that this is not the case. Some time later, that foreign country may change its law, extending citizenship rights by descent or restoring rights that had previously been lost, giving citizenship with retrospective effect, effectively disqualifying the member of Parliament even though he or she has done everything reasonable to ensure he or she is qualified. There is a genuine problem with making an important constitutional provision dependent on foreign law over which Australia has no control.


If the High Court interpreted section 44(i) in such a way as to rely on Australian law instead, then the Parliament could enact a law that required candidates to take an oath that renounced all foreign allegiance. Disqualification under section 44(i) would then only be triggered if that person later sought to exercise the rights or privileges of foreign citizenship, such as applying for a foreign passport or applying for social security rights in that foreign country.

The government understandably wants this matter resolved quickly, as its majority and three ministers are on the line. Yet the facts are complex, the potential distinctions are fine and the court needs time to formulate clear tests that are both practical and give certainty for the future. While the court will no doubt try to expedite the matter, the aim should be for a workable solution that provides long-term certainty, rather than a quick fix to the current imbroglio.

If the outcome is not to the government's liking, there is no ability to appeal to a higher court. The only appeal from the High Court these days is one to the Australian people in a referendum. In that case, the government may want to reconsider the 1897 draft provision that, if enacted, would have avoided the whole problem in the first place.

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