Common(wealth) Knowledge #5: Can politicians hold UK citizenship?

An in-depth look at dual citizenship in the federal parliament.

On 6 August, the Queen’s Platinum Jubilee Concert will be held in Brisbane. To coincide with this, 6 News put out a poll on Twitter to ask followers which UK-related topic they would like to see an article on.

With 28.9% of the vote, the question of whether Australian politicians can also hold UK citizenship won. So here is that article.

Most Australians will remember the 2017-2018 parliamentary citizenship crisis, where 8 Senators and 7 Members of the House of Representatives, all of whom were elected or re-elected at the 2016 double dissolution election, had to resign because it was discovered that they were citizens of another country. Among these politicians were 5 Senators and 1 Member, all of who were deemed ineligible due to also being UK citizens. 4 other Members with likely UK citizenship also resigned. However, this was not always the case.

Section 44(i) of the Australian Constitution prevents anyone who is “a subject or a citizen of a foreign power” from running for office. Under this provision, they will be considered “disqualified,” and Section 45(i) states that if a sitting Senator or MP has dual citizenship, their seat will be declared vacant.

It is a common misperception that Federation made Australia a fully independent state; this is not entirely accurate. Australia’s status was actually pretty ambiguous, because although Federation made Australia independent, Australia was still a Dominion of the British Empire, with the Queen of England as head of state, and the UK had significant control over what the Australian government could do.

Because of Australia’s relationship with the UK, Australians initially did not have Australian passports; they were citizens of the British Empire. This allowed politicians who were born overseas, including Prime Ministers George Reid and Andrew Fisher, to sit in Parliament. Indeed, Reid would later sit in the UK’s House of Commons. At this point in time, Australia was almost exclusively an Anglo-Saxon country.

But the citizenship went both ways. Richard Casey served as Australia’s first Minister to the United States, before becoming the British Governor of Bengal, then holding various Cabinet positions, including Minister of External Affairs, before finally becoming Governor. Some British politicians have even said that there was talk of Australian Prime Minister Robert Menzies replacing Winston Churchill in 1941.

Prime Minister Billy Hughes famously used this ambiguous status to Australia’s advantage during negotiations for the Treaty of Versailles. Along with other Dominions of Canada, New Zealand, and South Africa, Australia used its independence to secure a seat at the negotiating table, but often followed the UK’s lead in voting, with the UK effectively being able to cast 5 votes. Billy Hughes also used Australia’s independence to gain control over German New Guinea, through a League of Nations mandate. He also successfully blocked a Japanese proposal for a racial equality clause to be included in the League of Nations Charter, because of the White Australia Policy, and this may have contributed to later Japanese animosity towards Australia.

The Treaty of Versailles was the beginning of the end for Australia’s Dominion status. At the Imperial Conference of 1923, the UK allowed the Dominions to enter treaties independently. The Statute of Westminster Adoption Act 1942 (Cth) ended the UK’s control over Australia’s foreign policy and removed the UK’s authority to legislate on behalf of the Australian Parliament, without Parliament’s consent. The right to appeal Australian court decisions to the UK’s Privy Council was revoked with the passage of the Privy Council (Limitation of Appeals) Act 1968 (Cth) and Privy Council (Appeals from the High Court) Act 1975 (Cth). Finally, most remaining formal ties were severed in the Australia Act 1986 (Cth), but not before Australian citizens lost their status as British subjects in 1984.

It is necessary to discuss this history of gradual independence from the UK because it would set the scene for a major change in the High Court’s interpretation of Section 44(i) in the 1990s. This change came in the form of Sue v Hill (1999).

Sykes v Cleary (1992) is a good comparison case for Sue v Hill. Sykes dealt with the eligibility of the independent Phil Cleary to hold the seat of Wills, which he had won in a by-election following Bob Hawke’s resignation. Cleary’s eligibility was successfully challenged on the ground that he had not resigned from his job as public school teacher before the result was announced, and was therefore on the Victorian government’s payroll when he won. This was a breach of Section 44(iv). However, two other candidates, Labor’s Bill Kardamitsis and the Liberal’s John Delacretaz, held Greek and Swiss citizenship, respectively, and so were also invalid under Section 44(i).

Heather Hill had successfully won a Senate seat in Queensland for One Nation. Hill was one of three candidates to reach the quota and so be elected without the need for preferences. Henry Sue, a Queensland voter, and independent candidate Terry Sharples both challenged the validity of this election, because Hill also held UK citizenship. The two were joined by David Bennett, Solicitor-General for the Australian government, who had decided to intervene on their behalf. Long before this point, Australians had stopped receiving automatic UK citizenship; instead, Hill had UK citizenship because she was born in London.

The joint judgment of Gleeson CJ, Gummow and Hayne JJ, with Gaudron J issuing a concurring judgment, held that the UK was a foreign power. According to the joint judgment, the question of whether the UK is a “foreign power” for the purposes of Section 44(i) is based on “questions of international and domestic sovereignty.” Originally, as a Dominion, Australia was subordinate to the UK. Therefore, the court had to determine whether Australia’s status had changed enough to no longer be considered a subject of the UK.

Gleeson CJ, Gummow and Hayne JJ considered Section 1 of the Australia Act 1986 (Cth), which confirmed that no future UK laws would apply in Australia and to the complete removal of the Privy Council from the Australian legal system, as affirmed in Viro v The Queen (1978), and concluded that the UK was now a ‘foreign power.’ This meant that Hill’s election was invalid.

In one court case, the High Court had completely reinterpreted Section 44(i). And the court did this without a constitutional amendment. However, the joint judgment justified this by arguing that this interpretation of the Constitution was the correct one; it had just been limited by legislation passed by the British Empire. Quoting former High Court judge Windeyer J, in the Final Report of the Constitutional Commission, the joint judgment said that “when the [British] Empire ended and national status emerged, the external restrictions ceased, and constitutional powers could be given their full scope.” Gaudron J said that this was planned for from the beginning; Australia was always going to gain full independence, something the constitutional framers accounted for. After all, the joint judgment said, Queen Elizabeth II has never been the sovereign of Ireland, which received full independence before she became queen, yet we still accept that the Constitution, which refers to the ‘Queen of Great Britain and Ireland,’ also applies to her.

As a final note, the dissenting judges, McHugh, Kirby and Callinan JJ, did not dissent because they believed that the UK was not a foreign power. Rather, they dissented against the majority on a challenge raised by Hill. Hill argued that the Court of the Disputed Returns, not the High Court, should hear the case, as it involved the validity of an election, and the three dissenting judges agreed with her.

As a result of Sue v Hill, no politician can be a dual citizen, no matter what the other country is. But, arguably more importantly, it ended one of the last remaining ties between the UK and Australia. When Prime Ministers Julia Gillard and Tony Abbott wanted to run for Parliament, they could not retain their citizenship in the UK, their birth country. This is a far cry from Prime Ministers Reid and Fisher, and demonstrates just how far Australia has come.

Stuart Jeffery is a freelance researcher & digital editor for 6 News. His views on personal social media pages are his & his only, and do not reflect the views of 6 News or our journalists. He abides by 6 News' editorial standards relating to fairness & accuracy.

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Sources:

Australia Act 1986 (Cth).

Commonwealth of Australia Constitution Act 1900 (Imp) 63 & 64 Vict, c 12.

Constitutional Commission, Final Report of the Constitutional Commission (AGPS, 1988) Vol 1 at [2.130].

Privy Council (Appeals from the High Court) Act 1975 (Cth).

Privy Council (Limitation of Appeals) Act 1968 (Cth).

Statute of Westminster Adoption Act 1942 (Cth).

Sue v Hill (1999) 192 CLR 462; [1999] HCA 30.

Sykes v Cleary (1992)176 CLR 77; [1992] HCA 60.

Viro v The Queen (1978) 141 CLR 88; [1978] HCA 9.