Craig Buchanan, a West Australian Liberal candidate in 2016, has some sympathy for parliamentarians caught up in the Section 44 fiasco. But there are limits.
As a candidate at the last Federal election who had to go through the many hoops required to renounce my dual citizenship, I can sympathise with the growing number of Federal MPs who have found themselves running afoul of Section 44 of the Constitution. But only to a certain extent.
When I submitted my application for endorsement as the Liberal Party’s candidate for Brand in Perth’s southern suburbs, I did so in the knowledge that I would be required to renounce my British citizenship. That should be simple enough, I thought – dash off a quick letter to the British High Commission in Canberra, get an acknowledgement by return post, and everything would be fine, surely?
Well, no. In this world of tax-and-spend economics, it had obviously occurred to the British Home Office a few years back that they were on to a potential winner here. Candidates needed to be able to prove that they were no longer British citizens, often in a hurry, so the Home Office could benefit by charging them for the privilege – $550 by the time I came to submit my application. There was also a two-page form to be completed, nothing arduous but one more hoop to be jumped through, and then there was the interminable wait.
I submitted with just over a month to go before nominations closed, and to be doubly safe I paid another $100 to courier my documents to London. Private enterprise beat Australia Post hands down, and my paperwork was in the hands of the chaps at the Home Office 48 hours later.
A week later, having heard nothing back, I began to worry. They had taken the money out of my account, so I knew the processing had begun, but there was absolutely no indication as to when it would be completed. I phoned a couple of friends in London, contacted my UK MP’s office and asked him to contact the Home Office on my behalf (which he very kindly did), but the best we could get was an assurance that it would be done when it was done, and they’d let me know.
In the end, after some additional assistance from the High Commission in Canberra, and a few sleepless nights, my stamped paperwork came through just in the nick of time, the whole process having taken just shy of a month.
It seems Malcolm Roberts wasn’t as lucky, and his confirmation letter didn’t arrive until well after nominations had closed. That may open some technical arguments as to his eligibility to have stood as a candidate, but I imagine he will maintain that he did all that he reasonably could have to renounce, and it will be up to the High Court, sitting as the Court of Disputed Returns, to decide on the merits of his case.
What they may well do is ask Senator Roberts to produce the financial paperwork to prove the date on which the Home Office took their fee from him. At that point, he could arguably be said to have completed his portion of the transaction, and done all that he reasonably could as a result. That would certainly be in line with the advice we received from our lawyers while my own paperwork was being processed.
My experience shows that, with some prodding, the British Government can complete its processes in about a month. The six months it took for Malcolm Roberts to receive his confirmation may mean that he was too polite to prod, and that the wheels turned slowly. Or, it may mean that he submitted his paperwork a lot later in the process.
My own story doesn’t end with my British renunciation though. Back in the 90s, my father applied for foreign birth registration as an Irish citizen. I was looking at the possibility of a postgrad degree in Ireland at the time, and we thought a citizenship option might be helpful. Dad had to complete the paperwork, showing that he was the son of an Irish citizen, my grandfather, who had been born in Ulster prior to partition.
I didn’t need to sign anything – dad simply had to include a copy of my birth certificate along with his own paperwork, and the Irish government registered us both. I was aware of the process, but I needn’t have been for it to have been successfully completed.
And that appears to be where Senator Canavan came unstuck. He may not have been aware that his mother had applied for an entitlement to Italian citizenship on his behalf – and that word entitlement is important, because while there is no way you could apply for actual citizenship without a person signing off on their own application, it is entirely possible to apply for an entitlement which then has an hereditary knock-on effect.
The Constitution recognises no difference, treating an entitlement to citizenship – such as my own entitlement to Irish citizenship, for all that I have never held it – in the same manner as dual citizenship. In Senator Canavan’s case, the Court of Disputed Returns will have a much thornier issue to decide upon.
There have been calls in recent days for a senior judge to be appointed to scrutinise the eligibility of all members of parliament to hold their seats. That seems excessive to me. What seems more reasonable is to assume that, rather than just sitting back and taking people at their word, the Australian Electoral Commission could become more active, and insist on sighting the birth certificate of each candidate before processing their application to stand.
If the birth certificate submitted was issued by a foreign government, then the AEC could require that paperwork proving renunciation of citizenship be provided, again prior to a candidate being accepted. That wouldn’t catch every case – it wouldn’t have caught my Irish entitlement, or Senator Canavan’s Italian – but I suspect it would net the vast majority of cases, and make this painful situation far less common.
So far, this Parliament has lost at least four members to Section 44, with two more hanging on for dear life. Sympathy for the individual is all well and good, but it only goes so far, and lasts so long.
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