A powerful committee of Western Australia’s Upper House has recommended the state’s Constitutional Amendment (Foreign Allegiance) Bill should be amended to clarify the eligibility of Members of Parliament with dual citizenship to remain in Parliament.

The recommendation follows an opinion piece by respected law academic Lorraine Finlay discussing whether there are disqualification provisions that might affect any dual citizens sitting in state parliaments.

Writing in The Conversation, Ms Finlay said while Western Australian MPs could hold dual citizenships, their position as a member could be disqualified if they committed any act that acknowledged allegiance to a foreign power, which could include travelling on the foreign passport.

As a result of Ms Finlay’s analysis, the Legislative Council’s Standing Committee on Procedure and Privileges inquired into the foreign allegiance provision in section 38(f) of the Constitution Acts Amendment Act 1899.

The Committee found section 38(f) of the Constitution Acts Amendment Act 1899 is imprecise and legislative action is required to clarify the law, namely to provide for:

• express exceptions relating to acquiring or using a foreign passport or travel document; and
• a provision for relief, empowering the Houses of Parliament to resolve to disregard a disqualifying ground in certain circumstances.

Ms Finlay has welcomed the findings and the recommendation to amend the legislation to remove the uncertainty.

“The purpose of my analysis was to highlight the potential issues in state constitutions and electoral laws following the expulsion from federal parliament of 15 members and senators,” Ms Finlay said.

“It is pleasing this analysis was not disregarded and indeed, the Procedure and Privileges Committee took it so seriously as to inquire into Western Australia’s laws and recommend improvements.

“The Committee recommended this be fixed by the next Parliament following the March election, and I would encourage all political parties to support this recommendation and commit to fixing this uncertainty, particularly to avoid any potential court challenges to eligibility or costly by-elections.”

Pro Vice Chancellor at Murdoch University, Professor Grant O’Neill commended Ms Finlay on her analysis which has prompted the change.

“Lorraine’s critical analysis of the relevant laws has found potential flaws which, under some circumstances, could create constitutional issues for the state if they are not addressed,” Professor O’Neill said.

“We saw this with Federal Members of Parliament when one Senator determined he was ineligible to be a member of parliament and it snowballed from there.

“The Legislative Council’s Standing Committee on Procedure and Privileges has concurred with Lorraine’s analysis that there is an unacceptable risk and recommended changes.

“This is an impressive piece of work by Lorraine and students at Murdoch under her tutelage are privileged to have someone of her standing and experience guiding them into their legal careers.”