OPINION: The Commonwealth Parliament is facing a constitutional crisis not seen in decades: section 44 of the constitution prevents members of Parliament from being "citizens" of another country, and the list of MPs potentially in that category keeps on growing. Many of those MPs sit on the crossbenches, but now Deputy Prime Minister Barnaby Joyce is implicated in ways that threaten the government's slim majority.
Ultimately, it will be for the High Court to resolve this crisis, and controversy. But in the meantime, the question is how we should judge the argument of the Prime Minister, and Deputy Prime Minister, that – at least for now – Joyce is entitled to remain in Parliament.
There are good procedural reasons for supporting this conclusion. Joyce like any individual is entitled to the benefit of any legal doubt that exists. And the government has obtained advice from the Commonwealth's chief law officer, the Solicitor-General, which supports Joyce and the existence of such a doubt.
Perhaps the most important reason to support the government's position of waiting for the court to rule, however, is that as citizens we are entitled to a functioning parliament, and functionalist constitution. The Parliament makes too many important decisions that affect us all to be paralysed by this issue – it should continue to operate, and fulfil its constitutional functions, unless and until the court rules that a member is disqualified and a byelection or recount required. (Whether Joyce should also remain in cabinet, and continue exercising ministerial powers in a way that could give rise to a later legal challenge is another and much harder question).
The constitution itself should also be read in a "functionalist" way – that advances the broad values and purposes underlying the constitution, not a literal or pedantic understanding of the constitution's text. The purpose of section 44 of the constitution, in this context, is also clear: it is to ensure the complete loyalty of all MPs to Australia, rather than any sense of divided loyalty. And unless an MP knowingly chooses to become, or remain, a citizen of another country, their election cannot plausibly undermine that purpose.
The High Court itself has suggested that a purely literal reading of section 44 makes little sense in this context: it could mean that a person could be disqualified from running for Federal Parliament simply because of the actions of a foreign government (in, say, granting irrevocable citizenship to persons born there, or whose parents are citizens of that country), or because they have no living relative able to give a reliable account of their family tree.
This is patently unfair to many talented individuals wanting to pursue a career in public service. It also threatens the basic commitment to an inclusive and multicultural society on which Australia is now founded. And it does not advance the purposes of the constitution, which are to ensure loyal and impartial democratic representation by MPs.
The court itself has thus endorsed the idea that section 44 is not to be ready wholly literally, as depending entirely on the citizenship law of a foreign state: it has suggested that there may be exceptions to section 44 where a person takes "reasonable" steps to renounce foreign citizenship. The same logic also extends to a person who takes reasonable steps to ascertain whether they are in fact a citizen of another country.
We can certainly expect reasonable due diligence from MPs about whether they have dual citizenship, and thus the need to make decisions about renouncing foreign citizenship before deciding to run for Parliament. MPs should follow a higher, not lower, standard than ordinary members of the public when it comes to proper process: they are, after all, responsible for the entire democratic process. But the standard we apply to MPs should also be realistic, one which can be discharged through sufficient care and good faith.
Unless and until the High Court rules otherwise, the concept of "a citizen" in section 44 should thus be construed to mean a person who is "knowingly and voluntarily" a citizen of another country, or who at the very least fails to take reasonable care in determining whether they are a foreign citizen or in renouncing foreign citizenship, not simply someone who is entitled to a foreign passport.
On this issue, at least, the government seems to have both the constitution – and a concern for a functioning democracy – on its side.
Rosalind Dixon is a Professor of Law at UNSW.
This opinion piece was first published in the Australian Financial Review.