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The situation as I understand it. Scott Ludlam has vacated his Senate seat after it came to his attention that having lived here nearly all of his life and being naturalised as an Australian did not vacate his New Zealand citizenship. This caused him to fall foul of Section 44(i) of the Constitution, which disqualifies those who are “a subject or a citizen of a foreign power”. Those who drafted this would never have imagined it might apply in Ludlam’s case, since Australians and New Zealanders alike were then British subjects – Australian and New Zealand citizenship did not exist until shortly after World War II. In my view, the section could do with a redraft – or better yet, the matter of disqualification should be removed from the Constitution altogether and left to a normal act of parliament, which has worked happily enough in the states without triggering such unproductive disqualifications as those of Robert Wood, Phil Cleary, Jackie Kelly and Heather Hill.

There now arises the issue of who replaces him, covering ground familiar from the situations faced by Bob Day and Rod Culleton, respectively due to a pecuniary interest issue and a conviction for which Culleton was awaiting sentence at the time of the election (that the conviction had since been set aside did not avail him). In both cases, the Senate referred the matter to the High Court, which ruled that neither had been validly elected. This resulted in recounts being held for their respective Senate races in South Australia and Western Australia, and the election of the next candidates along on their party tickets, Lucy Gichuhi and Peter Georgiou.

If it plays out the same way this time, there seems little reason to doubt that a further Western Australian recount will deliver a seat to the Greens’ third candidate, Jordon Steele-John, a 22-year-old disability advocate with cerebral palsy. Steele-John wrote on Facebook today that “if it comes down to it, I’d be happier putting the choice of candidate back into the hands of our party membership”. I’ve heard it suggested that the High Court might not in any case be interested in having the matter referred to it, since Ludlam has resigned and there are no new points of law to be adjudicated on as there were in the case of Bob Day, who had likewise already resigned over the separate matter of his insolvency (UPDATE: Antony Green in comments demurs).

In either case, it seems likely the matter will eventually be determined by the Western Australian Greens as a casual vacancy, and it’s impossible to say how that will play out as there has been none of the usual jockeying for position, since the situation has arisen out of the blue. Antony Green has floated the idea that Ludlam could resolve his citizenship issue before the casual vacancy officially emerges, then simply take his own place. Failing that, the four Greens in state parliament might be thought obvious contenders, those with the most parliamentary experience being Robin Chapple and Alison Xamon. Chapple is 70, which might be thought discouraging, while the notoriously heavy demands of running a federal political career from Western Australia may not sound attractive to Xamon given her family responsibilities. Newly elected at the last election were Tim Clifford and Diane Evers. The position may also be of interest to Lynn MacLaren, whose eight year career ended in her narrow defeat in March.

Another issue relates to the question of the long-term and short-term Senate positions. After a double dissolution election, the Senate gets to decide which of its members serve six-year and which three-year terms, and last year they chose to do so on the basis of the order of their election. As the Greens’ top candidate, Ludlam was third elected and duly got a long term; twelfth elected was second placed Rachel Siewert, who got a short term. If a simple recount was conducted excluding Ludlam, Siewert would them be third elected instead, and would presumably have a claim to take the long-term position. Steele-John would then be elected ninth, and on declining to take the position, that would be the vacancy that would be filled. However, things get a bit murky around about here – can the Senate promote a Senator from a short to a long term in this fashion? Might the court evade this issue by ordering a different type of recount?

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Jack A Randa
Guest

I think almost everyone would now have one citizenship or the other, but there could be exceptions depending on how long people had resided in each place and at what time. We had a bizarre section in the colonial days that gave every resident of PNG nominal Oz citizenship but without a right to reside in Oz. Then in the Independence Act we repealed that, I think at the request of Somare and his negotiators. A resident and citizen of PNG challenged that (wanted to have an automatic right of entry to Oz) and lost in MIMIA ex parte Ame. See http://www.austlii.edu.au/au/cases/cth/HCA/2005/36.html

Barney in Go Dau
Guest

Thanks Jack,

It doesn’t really answer my question but is interesting none the less.

So someone born in New Guinea prior to this date could now claim 3 nationalities.

Jack A Randa
Guest

Well Barney I can partly answer that. S 25 of the Nationality and Citizenship Act 1948 said:

25. (1.) A person who was a British subject immediately prior to the date of commencement of thIS Act shall, on that date, become
an Australian citizen if-
(a) he was born in Australia and would have been an Australian citizen if section ten of this Act had been in force at the time of his birth;
(b) he was born in New Guinea;
(c) he was a person naturalized in Australia; or
(d) he had been, immediately prior to the date of commencement of this Act, ordinarily resident in Australia or New Guinea, or partly in Australia and partly in New Guinea, for a period of at least five years.

The “he”s of course refer to she-people! There are lots of following sub-sections which you can find at http://www.austlii.edu.au/au/legis/cth/num_act/naca1948831948320/naca1948831948320.pdf is you really want to.
Effect of this was that someone like me, born in 1940, became an Aust cit, but people like my da-in-law who were British and had served in the war and came here quite soon after the war and married an Aussie girl had not done the 5 years here and were not Aust cits – a source of some irritation to him when he found out!
Until 1984 0r 86 or something (I used to know it but I can’t be bothered looking it up again) we were also notionally “British subjects”. But as to whether some of these people could also have been citizens of the UK at the same time (a concept that hadn’t previously existed was invented at the same time as the former colonies adopted their own separate citizenships) you’d have to look up their citizenship laws. Since they voted for Brexit I have totally lost interest in them and their laws – wanting to leave the EU largely because of the number of Polish immigrants, after every Pole who was able had fought for them in the war! ‘orrible lot! Don’t care about ’em any more!

Barney in Go Dau
Guest

How does all this go for someone born before 26/01/1949?

Are they considered both British and Australian?

Raaraa
Guest

elaugaufein @ #35 Sunday, July 16, 2017 at 6:19 pm

That quote actually explains Ludlam’s problem too. Note that was from 92 and he was naturalized in the 80s. At the time the naturalization process was sufficient.
But Australia started recognizing dual citizenship in 96 (?) , so if your other citizenship didn’t care about your Australian one, you had to make an effort to revoke it separately.

This is an interesting issue that you have raised too. It would bring about a theoretical scenario where a member in 96 might have considered himself or herself purely a naturalised citizen having lost citizenship due to Australian laws, but suddenly having to deliberately renounce their former citizenship after the new legal changes.

Raaraa
Guest

Thanks for the responses on the 3 year vs 6 year term debate. Interesting responses and it has left me with more questions, but I guess it will warrant further reading on my part.

Antony GREEN
Guest

The count is not an election. It is a court ordered procedure to fill a vacancy. We call it a re-count but it is not a re-count as defined by the Electoral Act, which is a procedure undertaken to finalise the result of an election.

Elaugaufein
Guest

*not

Elaugaufein
Guest

I think from a theoretically point of view the recount is now a new election but a correction to the original election, so it follows that everything is considered from the point of view of the original election.

Tom the first and best
Guest
Tom the first and best

The Ludlam Case raises an interesting question, the definition of Senate terms, whose main previous hearing was Vardon v O’Loghlin (in relation to revoting in a half-Senate election). Unless the recount for the 1987 NSW was finished after the 1st of July, this is the first time a Senate recount has occurred with a different previous 1st of July to that of the original Senate election being recounted and thus raises the question of which 1st of July the Senate term of the replacement Senator commences from.

I strongly suspect (despite not being a lawyer) that it would be ruled that, for the purposes of the term, the recount is retrospective and thus the 1st of July of the original election rather than use the Constitution`s specific determination of the terms of Senators on an individual basis to have separate terms for the new Senator.

Elaugaufein
Guest

He’s gone anyway since he resigned. I’d guess he took it after 86 since he decided not to fight it, and I can’t imagine he wouldn’t have sort legal advice first (I mean it’s pretty much impossible the party wouldn’t have asked him to wait until they did if nothing else even if he wasn’t inclined too).

Jack A Randa
Guest

I should qualify what I’ve said above. After the 3 judges in Sykes v Cleary remarked that “it is relevant that… a person who has expressly renounced” the other nationality in a ceremony “may well believe they have renounced” it, they then went on to find that the Swiss and Greek-born candidates, even though they had taken the old form of oath with the renunication, had failed to take some simple extra steps that were available to them and therefore were ineligible for election. But the 2 judges who heard the argument about Lucy Gichuhi seemed to be impatient with the attempt to disqualify her. It does seem that the current generation of HC Justices may not be as strict about para 44(i) as the 1992 generation. But if Scott L did neither the old form of swearing allegiance which included a renunciation nor any other form of renunciation, then he’s gone. Silly law, but all candidates since 1992 should have known about it.

Jack A Randa
Guest

Yes I think it’s most likely that it was after the oath/declaration was amended, in which case he’s stuffed. But we need DETAILS!

Elaugaufein
Guest

I dunno. He just said in his teens and so he could vote (so before he turned 18). Which is pretty much any time from somewhere in 83 until somewhere in 88.

Elaugaufein
Guest

I dunno. He just said in his teens and so he could vote (so before he turned 18). Which is pretty much any time from somewhere in 83 until somewhere in 88.

Jack A Randa
Guest

Found it in a Parliamentary Library Research Note! The repeal of the words “renouncing all other allegiance” (which may by themselves have been enough to satisfy the High Court that someone who used that form of words was not a dual citizen) commenced 20th August 1986. So when did Scott L do the deed?

Jack A Randa
Guest

Hmmm. Our oath of allegiance included the words “renouncing all other allegiance” until 1986. If the other country did not recognise that, the person was, whether they intended it or not, a dual citizen – though the bit at the very end of the passage I quoted above may suggest that such people were ok anyway under s 44. [Just when was Ludlum naturalised? And when did the 1986 amending Act commence? I haven’t found that in the intertubes so far, but I’ll keep looking. Depending on the two answers, and how much weight you give to the last sentence in the quote from Sykes v Cleary, Ludlum may be panicking over nothing.]
After that, from the Australian point of view you could be a dual citizen if you had held the other one first and got naturalised here and the other country didn’t regard the taking of Aust citizenship as a renunication (Kenya did until some date), but an Australian who got naturalised elsewhere lost their Aust citizenship until 2002. It’s all so complicated it’s no wonder people make mistakes. S 44 really should be amended, but that would require the major parties to agree on some sensible amendments and then to overcome their defeatism about their ability to persuade Us, the People to vote yes.

Elaugaufein
Guest

That quote actually explains Ludlam’s problem too. Note that was from 92 and he was naturalized in the 80s. At the time the naturalization process was sufficient.

But Australia started recognizing dual citizenship in 96 (?) , so if your other citizenship didn’t care about your Australian one, you had to make an effort to revoke it separately.

Jack A Randa
Guest
Why “hold the argument”, Peter? First, whether any MHRs are ineligible is a totally different issue from the one in the Senate. (One that admittedly could have catastrophic consequences for the government if it arose in a swing seat.) Second, you are exaggerating the difficulty. Indeed “entitled to the rights or privileges of a subject or a citizen of a foreign power” looks very broad. Even at the time of federation people were saying maybe everyone would be disqualified because Japan, in an attempt to show its friendship with Britain, had declared that all subjects of Queen Vic were entitled to the privileges of a Japanese citizen. The realists said “of course the High Court won’t read it that broadly”. And they haven’t. In Sykes v Cleary ( http://www.austlii.edu.au/au/cases/cth/HCA/1992/60.html ), referring to the dual citizenships of candidates Delacretaz and Kardamitzis, the joint judgment said: in international law, [the] question is to be determined according to the law of the foreign State concerned. 52. But, there is no reason why s.44(i) should be read as if it were intended to give unqualified effect to that rule of international law. To do so might well result in the disqualification of Australian citizens on whom there was imposed involuntarily by operation of foreign law a continuing foreign nationality, notwithstanding that they had taken reasonable steps to renounce that foreign nationality. It would be wrong to interpret the constitutional provision in such a way as to disbar an Australian citizen who had taken all reasonable steps to divest himself or herself of any conflicting allegiance. … What is more, s.44(i) finds its place in a Constitution which was enacted at a time, like the present, when a high proportion of Australians, though born overseas, had adopted this country as their home. In that setting, it could scarcely have been intended to disqualify an Australian citizen for election to Parliament on account of his or her continuing to possess a foreign nationality, notwithstanding that he or she had taken reasonable steps to renounce that nationality…. 53. What amounts to the taking of reasonable steps to renounce foreign nationality must depend upon the circumstances of the particular case. What is reasonable will turn on the situation of the individual, the requirements of the foreign law and the extent of the connection between the individual and the foreign State of which he or she is alleged to… Read more »
Kevin Bonham
Guest

antony green @ #31 Sunday, July 16, 2017 at 1:14 am
As I think Kevin raised, if one of these issues came up after the next election when the short term Senators had already faced election again, all sorts of strange scenarios are possible, like a new Senator being elected to an old term. That’s why the Court decides these issues case by case.

Yes, I raised that one in comments on my site. If this situation had arisen in the second half of Ludlam’s term and in the meantime Siewert had gone to an election and been defeated, then there would be a case that Siewert should be eligible to serve out the remainder of Ludlam’s term.

The other possibility is if it arose in the second half of Ludlam’s term and Siewert had in the meantime been re-elected for a new six year term. In this case Siewert would have been entitled to a six-year term from 2016 based on the principles behind the Senate’s previous allocation, but would have also been elected to a six-year term from 2019, creating a paradox. Presumably Siewert would be allowed to keep the longer mandate in that case and a second special count would be done without her as well.

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