The dual citizen ban – what was Barton thinking?
This post outlines an argument that the ban on dual citizen parliamentarians – in s44(i) of Australia's Constitution – was never intended by its framers to apply to dual citizens. There are links to a referenced version, and referenced legal arguments, at the end of this post. A shorter version is available here.
Dual citizen parliamentarians are banned under Australia's Constitution – even if they don't know of their foreign citizenship. It's one thing to ban foreign citizens from Parliament, but banning Australian citizens because of dual nationality they never sought, and may be unaware of, is quite another. Very few other countries do that.
The ban's far-reaching implications became evident in 2017 when the High Court disqualified five dual citizen parliamentarians. Four of them believed they were only Australian citizens and had little reason to think otherwise.
If you persevere with the detail, the High Court's judgment provides compelling examples of the bewildering complexity, and long half-life, of citizenship. Senator Canavan, for example, was only an Australian citizen when born, and his parents and grandparents were then also only Australian citizens. A few years later, an old Italian law was declared unconstitutional. That made Senator Canavan's Australian born mother an Italian citizen and, on one view, him also. The High Court found, on the evidence, that he was not disqualified – but it looked like a close call.
The dual citizen ban results from the last part of s44(i) (the second limb), which provides that "a subject or a citizen ... of a foreign power" is incapable of being chosen or sitting as a parliamentarian. This overlaps with the first part of s44(i) banning a person "under any acknowledgment of allegiance ... to a foreign power" (the first limb).
To lift the ban, any foreign citizenship must cease before a person nominates for election. If foreign law is an insurmountable obstacle, it may be enough to take all steps reasonably required.
Why are dual citizen parliamentarians banned? The High Court's answer is that the ordinary meaning of the words requires it, and s44(i)'s purpose and drafting history does not support any other approach.
But why was the ban thought a good idea in 1900, when the Constitution was enacted? No doubt, s44(i) seeks to protect against parliamentarians who may unduly favour, or be influenced by, foreign powers. It treats foreign citizenship as indicating predisposition to that. Reasonable as that may seem, it's less so where foreign law makes a person a citizen because a grandparent was a citizen.
I think there is an argument – which the High Court has not yet been asked to consider – that the framers of the Constitution never intended the second limb to ban dual citizens, even though the words clearly require that to a modern reader. Of course, any citizen voluntarily seeking to become a foreign citizen would "acknowledge" foreign allegiance and be banned under the first limb. But that would not catch those who did not seek, and were unaware, of their foreign citizenship.
Since 1992, it has been accepted in the High Court that if an Australian citizen is also claimed as a citizen under foreign law, our law recognises both nationalities making the person a foreign citizen under s44(i) (subject to very limited exceptions). That approach (90's approach) was supported by mid-twentieth century authorities.
I argue that when the Constitution was enacted in 1900 the approach to dual nationality (1900 approach) was very different. (Note that before 1948 there were no Australian citizens – only British subjects – so references to British subjects below include all we now call Australian citizens.)
All British subjects owed absolute allegiance to the Queen. Under English law, that allegiance prevailed over competing obligations.
English case law generally disregarded any foreign nationality of a British subject unless a statute clearly required otherwise.
I argue that in 1900 a British subject would not have been considered a foreign citizen merely because the laws of a foreign power also claimed that subject as its citizen. Rather, the competing foreign claim to that subject's allegiance would generally have been ignored, and they would be treated the same as any other British subject.
Under the 1900 approach, the second limb of s44(i) would have had virtually no application to British subjects. Rather, s44(i)'s effect would have been similar to that of equivalent clauses in the Australian colonies' constitutions.
If the 1900 approach still applied today, s44(i) would not have disqualified any of the dual citizen parliamentarians who have lost their places in recent years.
If these arguments are correct, what it means for the interpretation of s44(i) today is not as obvious it might appear. I will return to that after outlining the basis for the 1900 approach.
The law on nationality was very different in 1900. English law's use of "subject" rather than "citizen" reflected the notion of "subjection to one lord and king". Until 1870, all British subjects owed absolute and indelible allegiance to their sovereign, for life. Allegiance was a feudal concept, and those roots were still obvious in 1900.
For centuries, English common law had based nationality on place of birth, which clashed with the prevailing European approach based on descent. Conflict between these approaches made competing claims to allegiance, and dual nationality, inevitable. They arose, for example, whenever a child with a French father was born in the British Empire. That was the case for British born Angus Macdonald, who had lived since infancy in France. In 1747 he was nevertheless treated as a British subject, convicted of treason and sentenced to death for his support of the Jacobite rising. (He was later pardoned on condition that he never return to Britain.)
Dual nationality (or "double allegiance" as it was usually known) was more of a problem for individuals than the states claiming their allegiance. Most states preferred to have an exclusive claim to their citizens' allegiance. But they couldn't stop foreign states defining citizenship broadly so as to create competing claims. If a state wanted to attract more subjects or citizens – as many then did – its best option was to ignore the issue. If both states did that, their conflicting claims were a serious problem for anyone unfortunate enough to be in Angus Macdonald's position, but that was rare if the person stayed in one state and ignored the other state's claims.
Britain, like most states, regarded its claims to a subject's allegiance as paramount, and had done so for centuries. Nineteenth century empire building ensured that Britain was effectively competing with other countries for much needed subjects. It was unthinkable for Britain to subordinate its needs to the claims of other States.
The 1812 naval war between Britain and the US provided a striking illustration of the importance of this issue to Britain. One cause of the war was the British practice of stopping US ships to "impress" naturalized Americans into naval service, treating them as British subjects who continued to owe indelible allegiance to the King. The Prince Regent (later, King George IV) strongly defended Britain's right to ignore the US's competing claims to allegiance in his response to the US declaration of war, and asserted that for Britain to abandon its claim "would be to expose to danger the very foundation of our maritime strength”. The issue was too important for Britain to concede in the treaty ending the 1812 war. It continued to be a source of tension with the US for at least half a century.
Finally, after a lengthy and comprehensive Royal Commission report in 1869, there was legislative reform in Britain. The Naturalization Act of 1870 (1870 Act) permitted British subjects to be naturalized in a foreign country and cease to be British subjects. That meant allegiance was no longer "indelible" for those who left the British empire, but special cases aside, the expectation that allegiance was absolute and paramount for others continued.
The 1870 Act also removed old restrictions on naturalized British subjects (who would likely be dual citizens) becoming members of either house of the Imperial parliament in London. That was an extension of reforms 25 years earlier which had recognised the importance of such privileges for Britain's interest in attracting immigrants able to make significant contributions to the nation. The Lord Chief Justice of England at the time noted another advantage of conferring such privileges:
"... it is desirable to attach the newly admitted subject as much as possible to the country of adoption, and not to leave room for any feeling of hardship or wrong arising from a sense of illiberal jealousy or ungenerous distrust."
This policy of giving the same privileges and recognition to all subjects, including naturalized dual citizens, was affirmed again in 1901 following a review underway when the Constitution was enacted.
When the High Court adopted the 90's approach it was not asked to consider the position in 1900, nor was that obviously relevant. The court applied the common law at that time, referring to mid-twentieth century cases, and the 1930 Hague Convention, which required recognition of foreign citizenship and dual nationality. However the common law's approach in 1900 was very different. The approach then was generally to ignore any foreign nationality of a British subject, and disregard dual nationality, unless a statute clearly required otherwise.
As was explained in 1963 by Peter Nygh – who went on to become the author of a seminal Australian text on conflict of laws and a Family Court judge:
"... it is difficult to imagine any circumstances in which the courts would give effect to the existence of the second nationality except of course where they are expressly directed to do so by statute or ... [he describes a case covered by the 1870 Act]."
The reason for that approach was explained by W E Hall in 1894:
"English law knows no distinction between different classes of natural born British subjects in respect of rights or obligations. All alike, whatever their parentage, have the same duty of allegiance, the same rights within the British dominions, and, subject only to a qualification introduced in certain cases for reasons of public policy, the same right to recognition and protection abroad."
The statement above relates to natural-born British subjects, but the approach to naturalized British subjects was generally the same when they remained within the British empire. Leading scholars at the time, Professors Westlake (Cambridge) and Dicey (Oxford), expressed views to similar effect.
The 1900 approach of disregarding foreign nationality of British subjects continued into the early part of the twentieth century at least.
One case in 1903 concerned Australian-born Arthur Alfred Lynch, who was convicted of treason for his role in the Boer War. He was sentenced to hang, but ultimately pardoned. Lynch went to South Africa as a war correspondent, became naturalized as a citizen of the South African Republic and then fought in the war against Britain. He argued that he ceased to be a British subject under the 1870 Act when naturalized, and so could not be guilty of treason. The court held that the 1870 Act did not permit naturalization in an enemy country during war. Lynch's South African citizenship was ignored, apart from treating the first steps to obtain it as treason. Lynch's exploits were covered extensively in Australian newspapers from 1900 on as he made a slow but deliberate path to England, despite warnings, to be arrested and tried.
During World War I it was held that a natural born British subject, Mr Freyberger, who was also an Austrian (enemy) subject by descent, could not make a "declaration of alienage" to become solely an enemy subject and obtain a discharge from the British army. Freyberger was treated the same as any other British subject, with no recognition of his other nationality.
Courts would, of course, still recognise the foreign nationality of a British subject if clearly required to by statute. This was held to be the case where a British Order expressly charged property of "German nationals" to give effect to the treaty ending World War I. The House of Lords considered that only German law could give meaning to "German national".
It is clear that in 1900, and for the first part of the twentieth century at least, there was no general assumption that the foreign nationality of British subjects who were dual citizens would be recognised under English law. Rather, unless there was a clear contrary intention, they were generally treated the same as any other British subject.
Under the 1900 approach, a British dual citizen would be treated the same as any other British subject unless s44(i) clearly required otherwise. In contrast to the term "German national", the phrase "subject ... of a foreign power" could only be interpreted in the first instance under the law of Australia – since Australia itself would be "foreign" under the laws of any other country. On the 1900 approach, the common law of England and Australia would ignore any foreign nationality of British subjects and treat them only as subjects of the Queen, and therefore, not "foreign".
The effect of the second limb of s44(i) under the 1900 approach would have been limited. However, it would not have been entirely superfluous even though, in 1900, s34(ii) separately required all parliamentarians to be subjects of the Queen. Arguably, the second limb was needed to ensure that parliamentarians who became foreign citizens after being elected would lose their places. More importantly, the requirement to be a subject in s34(ii) only applied until parliament provided otherwise. Consequently, the second limb was needed to limit how far parliament could go, without a referendum, if it dispensed with s34(ii).
The drafting of the Constitution was a long and tortuous process taking nearly a decade. Drafts were prepared by a drafting committee and debated by delegates from the federating colonies at four lengthy Convention sessions – the first in 1891 and the rest, after a long break, in 1897-8. The agreed draft was then twice put to "referendum" votes by federating colonies. Finally, the Imperial parliament in London passed it, with some amendments, in 1900.
The drafting committee did not lack for legal expertise. It was chaired by Sir Samuel Griffith QC in 1891, and by Edmund Barton QC, then Leader of the Convention, in 1897-8. Both chairs drove the drafting and were heavily involved. Griffith, Barton and Richard O'Connor QC, another member of 1897-8 committee, would later comprise the new High Court for its first three years.
The first draft of what became s44(i) was similar to clauses in the federating colonies' constitutions. Two amendments to it are worth noting – one made at the start of the process, and one at the very end. The first changed a provision causing elected parliamentarians to lose their places on doing certain acts, into one that made anyone who did those acts "incapable" of being elected. That meant the relevant acts – such as swearing a foreign oath of allegiance – disqualified them indefinitely. A question at the Convention, and a confidential criticism by the British Colonial Office, both suggested that the disqualification should be lifted for someone who later became a naturalized British subject.
The second noteworthy amendment was a redraft that created the dual citizen ban. It did that by changing the basis for disqualification from an act to a status – from disqualification after doing a specified act, to disqualification while being a foreign citizen or equivalent. None of the drafts before that amendment, and none of the precedents in the colonies' constitutions, would have disqualified any of the parliamentarians found to be dual citizens in recent years.
The change from action to status addressed the British Colonial Office's criticism since it meant that disqualification would end once a person stopped being a foreign citizen. Barton noted on his copy of the British Colonial Office's comments that its criticism had been addressed. That may have been the reason for the redraft.
But the other effect of the change was to create a broad dual citizen ban that disqualified British subjects who had done nothing to seek – and might not even have been aware of – their additional foreign citizenship. The circumstances suggest that was not intended.
This change was made only two weeks before the Convention ended in March 1898. At that time Barton and the Convention were under great pressure to resolve several controversial issues and bring a decade's hard work to a successful close. The change was one of 140 amendments made by the drafting committee that Barton was asked to run through. He declined, suggesting that members instead review a page-by-page comparison with the previous draft. Barton portrayed the amendments as “merely questions of drafting” that did not alter the sense, except where required by the Convention.
Other parts of s44 were debated at length, but there was no explanation or discussion of the dual citizen ban at all. It may be that the drafting committee did not realise the redraft would ban dual citizen parliamentarians. No one was seeking a dual citizen ban. There was no precedent for such a ban, and some of the colonies' parliaments probably had dual citizen parliamentarians. The colonies' electorates that needed to approve the draft constitution would have included dual citizen voters.
It was more than two years after the Convention finished before the Constitution was enacted by the Imperial parliament. During that time, the draft received close scrutiny by its opponents, the parliaments and electorates of each colony, leading Australian and British lawyers, the British Colonial Office and the British government. Other changes were made as a result of that scrutiny, to secure support in NSW and at the insistence of the British government. However, no concern was raised about the late introduction of an unprecedented dual citizen ban that was contrary to the approach Britain itself had taken 30 years earlier and was about to reaffirm.
If the redraft was understood to create a dual citizen ban, the lack of discussion and opposition was surprising. It made perfect sense, however, if the 1900 approach applied.
As mentioned already, the 1900 approach meant the second limb of s44(i) had limited effect, although it would still have limited how far parliament could go if it removed the requirement for parliamentarians to be subjects of the Queen. What the second limb would have prevented, without a referendum, was foreign citizen parliamentarians who owed no allegiance to the Queen. That was precisely what Barton had argued for at the 1897 Sydney Convention session:
"Persons who have taken the oath of allegiance to a foreign power are not to be classed in the same category as citizens of the country for the purpose of joining in legislation."
Barton's statement accurately summarises the effect of the 1900 approach to s44(i). Dual citizens, like any other citizens, would be disqualified under the first limb of s44(i) if they swore allegiance to a foreign power. Dual citizens by descent and naturalized British subjects, who had not done that, would be treated the same as all other "citizens of the country".
What would it mean for s44(i) if the arguments above are correct? If the ordinary meaning of s44(i) had the meaning given by the 1900 approach at federation, that had a number of advantages over the 90's approach, including:
Disqualification of parliamentarians did not turn on the vagaries of foreign laws and the procedures of foreign governments. Rather, it depended primarily on the first limb of s44(i) – whether a person "is under any acknowledgment of allegiance, obedience, or adherence to a foreign power". The second limb had limited effect apart from preventing parliament from permitting, without a referendum, the election of parliamentarians who were only foreign citizens and owed no allegiance to the Queen.
The test for disqualification was clear, based on matters likely to be within the knowledge of the person concerned, and did not require foreign law advice, continuous monitoring of all foreign nationality law and genealogical research.
That may help explain why s44(i) did not appear to be problematic for over 90 years, including during two world wars when concern regarding allegiance was understandably extreme. It may also suggest that the framers of the Constitution, and even the population generally, had a better appreciation of the challenges and complexity of "double allegiance" than we do. Whether either of those suggestions is correct is more a matter for historians than lawyers.
What the arguments above, if correct, would mean for the interpretation of s44(i) today is a different matter. I suspect Barton thought the recast s44(i) continued to give effect to the approach he advocated to the Sydney Convention. But the significance of that for the current meaning of s44(i) is limited.
The legal relevance of historical context and the intentions of the framers, and constitutional interpretation in general, are both difficult and controversial issues beyond the scope of this comment. It is enough to note that the High Court is generally, and unsurprisingly, less inclined to examine the historical context closely where the ordinary and natural meaning of the language is clear.
In this case, we consider the ordinary meaning of "subject ... of a foreign power" to be clear because we assume it to depend in the case of an Australian citizen (or at federation, a British subject), on whether any foreign law treats that person as a citizen. The arguments above suggest that, in 1900, the ordinary meaning was different because a British reader would assume its meaning in relation to a British subject would be determined by English law, and foreign law claims to that subject's allegiance would be disregarded. Whether the High Court would consider that justifies examination of the historical context is not clear to me.
An alternative approach might be to focus on the common law relied on in the decisions that adopted the 90's approach. The High Court could overturn that aspect of those decisions, although the High Court rarely does that. Another possibility may be that – if it is accepted that the common law's approach to dual nationality changed in the mid-twentieth century – parliament could enact legislation to reverse any effect of that change on s44(i) and restore the 1900 approach.
A number of independent inquiries have considered s44(i) and recommended removal or reform of the dual citizen ban. It may not be among the most important reforms to put to a referendum. Nevertheless, the ban is unfortunate and does harm. Our dual citizens should not be made to feel like second-class citizens. Doubting loyalty without reason undermines it. And this is not a good time to reduce unnecessarily the pool or diversity of eligible parliamentarians.