A good piece from The Australian today by Roger Wilkins who is a former secretary of the federal Attorney-General’s Department:
On a literal interpretation of section 44, it seems pretty clear that Joyce was not qualified to be elected. He was a citizen of a “foreign power”: New Zealand. The section says the “citizen of a foreign power” is “incapable” of being validly elected.
…In the case of Sykes v Cleary, the court said someone who takes all reasonable steps to renounce their foreign citizenship would not be caught by section 44. So the court seems to be prepared to depart from a literal interpretation of the section. How far are they prepared to depart from the plain words of the section? That is the key issue.
…Could the court say that where citizenship is conferred automatically, then section 44 does not apply? The conflict of allegiances, which is what section 44 is presumably aimed at eliminating, would still exist even in cases where citizenship is automatic.
Could the court instead look at the issue of knowledge and say that where the person did not know they were a citizen of another country, then section 44 did not apply?
The problem with this solution is that it could be seen as creating a disincentive to find out if you have citizenship of another country. It might encourage a “head in the sand” attitude — avoid finding out if there is a problem, a potential conflict of allegiance.
…However, in my view, the court is likely to adhere to its current interpretation, that is: section 44 gives sufficient opportunity for potential candidates to avoid the problem of dual citizenship.
Too right it does. And if you’re that sloppy and careless then see ya and wouldn’t wanna be ya.
The Constitution should be protected.
