Law student Hussein Al Asedy has co-authored an opinion piece with constitutional law expert Lorraine Finlay, which casts doubt on the eligibility of some newly elected parliamentarians to serve.

After a tumultuous period in Australian politics, many are hoping the new Federal Parliament will bring a new stability to Australian politics.

The last Parliament saw a change in Prime Minister, the government pushed into minority status, and an unprecedented 17 federal parliamentarians either being declared ineligible or resigning due to constitutional issues. 

Of those, the dual citizenship disqualification under s.44(i) of the Constitution was the most controversial, with 15 parliamentarians, including the Deputy Prime Minister, being excluded from the Parliament on the basis of dual citizenship.

Many would hope that the election of a new Parliament will allow us to finally move on and put the whole issue behind us.

The bad news is that it is not that simple. 

Anne Twomey has already warned of the prospect of a ‘frenzy of litigation’ immediately following the return of the writs, as electors look to file eligibility challenges through the courts within the 40-day window provided under current laws.  This may or may not actually eventuate, but the mere possibility itself creates unhelpful uncertainty for a government hoping to project an image of stability. 

New considerations for section 44

And there may be worse to come, with up to another 26 elected parliamentarians – including high profile politicians such as Bill Shorten, Chris Bowen, Adam Bandt, Alan Tudge and George Christensen - potentially ineligible to sit in the 46^th parliament under aspects of s.44(i) that have not yet been fully considered.

In an article recently published in the UWA Law Review, we raise the prospect that there are other aspects of s.44(i) that may present ongoing difficulties. 

While most Australians are now aware that a person holding dual citizenship is ineligible to nominate for Federal Parliament, it is still not common knowledge that s. 44(i) also disqualifies anybody who is ‘… entitled to the rights or privileges of a subject or a citizen of a foreign power’.   Exactly how far this ‘entitlement’ disqualification extends is not yet entirely clear. 

This is not merely a technical point of academic interest.  It is true that most countries clearly distinguish between the rights of citizens and non-citizens, and don’t tend to extend the rights traditionally associated with citizenship to non-citizens. However, one major exception for Australians stands out and has potentially significant implications for the next Australian Parliament.  This is the British status of Commonwealth citizenship with the right of abode.

Under UK law, some Commonwealth citizens (including Australians) are afforded the right of abode.

 A Commonwealth citizen with the right of abode is free to enter and exit the UK without hindrance, work, study, apply for welfare, vote, and stand for public office. The only real difference with British citizenship is the name.

Determining whether an Australian citizen is also a Commonwealth citizen with the right of abode under UK law is a complicated and technical exercise although, to paraphrase the High Court in Re Canavan, those facts would always have been knowable.

The entitlement can arise by birth or marriage.  For example, if an Australian citizen was born before 1 January 1983, and at the time of their birth at least one of their parents was a Citizen of the United Kingdom and Colonies, then they will have the right of abode by birth.    

To further complicate matters, the right of abode through Commonwealth citizenship exists separately to the right of abode through British citizenship.  This means that an individual may renounce their British citizenship but still retain a separate entitlement to the right of abode by virtue of a distinct, and continuing, Commonwealth citizenship.

Who will be affected by the right of abode?

Based on the publicly available qualification checklists completed by 2019 federal election candidates and the Citizenship Registers from the previous parliament, up to 26 politicians elected to the 46^th Parliament, and a slightly different 26 politicians from the 45^th Parliament, potentially hold an entitlement to Commonwealth citizenship with the right of abode. 

Two recent Prime Ministers, Tony Abbott and Julia Gillard, also potentially fall into this category, which may mean that they were constitutionally ineligible to sit in the Australian Parliament.

Of course, nobody can say for certain because nobody knows if Commonwealth citizenship with the right of abode falls within the scope of s. 44(i).  This ultimately remains a question that only the High Court can definitively answer. 

However, we note that the High Court has previously placed considerable weight on the right of abode when ruling on the eligibility of Senator Nick Xenophon.  At the very least, this suggests that this question deserves serious consideration.

This example is yet another reminder of the importance of clarity when it comes to s. 44.  Parliamentarians, candidates and, most importantly, the Australian people, need to know what the relevant constitutional standards are.

This should not be seen as a reason to alter the constitution, but rather an opportunity to clarify the existing provisions. We should be able to have confidence that our Parliament is properly constituted.

Clarifying the status of Commonwealth citizenship with the right of abode is essential if we are to be confident that all members of the 46^th Parliament are constitutionally eligible to serve.