Stage one: legal studies
“Should MP’s with dual citizenship be made to resign”
There hasn’t been much excitement and interest in the constitution until now with the rise of dual citizenship occurring in the parliament. The thin majority of Australian prime minister Malcolm Turnbull's administration is under threat from a constitutional crisis. A progression of prominent MPs, including the deputy prime minister and another government minister may lose their seats in parliament after disclosures that their citizenship of different nations may exclude them under Australia's constitution.
The Australian constitution is clear in disqualifying anyone who holds foreign citizenship to serve in the national parliament.
As section 44 (i) states, any individual is disqualified if they are:
· under any acknowledgement of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power. (the grey area of this is entitled)
subsection 44 (i) has generally been interpreted by the high court of Australia as meaning that persons with dual citizenship are not permitted to stand for election and that a person must take reasonable steps to renounce their citizenship of the other country.
Requirements of section 44 states the person must only hold an Australian citizenship and the persons allegiances must be to Australia if seating in parliament. Anyone with a dual citizenship must be disqualified from seat.
With this it should be clear that an MP with a dual citizenship be made to resign. This where the problem occurs in the parliament where some MP’s declare that they had no acknowledgment of them having a dual citizenship. Many MP’s state that the constitution must be followed as required and the following dual citizens must resign their seats. With the matter being taken to the high court if the high court does stick to the constitution, everyone entitled to foreign citizenship was ineligible, it would wipe out a swathe of MP’s and senators who have never tried to claim allegiance to any other country, this means anyone with a dual citizenship would be gone. With this a new election would be made to replace the house that lost most of the seats.
Section 28 of the Australian constitution states that House of Representatives elections must be held ta least every three years. The Prime Minister decides the date for an election (this could be at any time during the three-year term). There are 150 members elected to the House of Representative, one for each of Australia’s 150 electorates. An average of 150000 citizens live in each electorate, with an average of 100,000 voters.
Preferential voting is used in the House of Representative because it is designed to result in the election of a person who receives the broadest support from the electorate, even though that person may not be the first choice of majority voters in the electorate. The political party which wins majority of seats in the House of Representative will form the government. As there are 150 seats in the House of Representative, the party which forms government must win 75 + 1 seats.
Twelve senators are elected to represent each state and two senators are elected to represent each territory. States senators are elected for a period of six years using a system of rotation that ensures that only half the state senators end their term every three years. Territory senates are elected for a period of three years at the same time as the members of the House of Representative and half of the Senate.
In some cases, a by-election could be needed. A by-election is a mini-election held for a House of Representative electorate if a member resigns or dies between federal elections. A casual vacancy occurs in the senate if a senator resigns or dies between federal elections. They are replaced by a candidate from the same political party, chosen by the parliament or legislative assembly of that state/ territory.
If the High court of Australia does decide that the MP’s involved should resign this would case a by-election to take place in the parliament for the… who won by one seat.
Federal elections are organized and run by the AEC, who make sure that elections are free, fair, and legal. (The Commonwealth Electoral Act 1918 and the Australian Constitution set out the requirements for running elections).
If the High Court of Australia does decide to change the wording of the constitution a referendum maybe given to thought if the solution has been decided to change the wording. To change the Australian constitution, each proposed alteration must be approved by a double majority of voters in a referendum. A double majority is a voting system which requires most votes according to two separate criteria (in this case it would be should MP’s with dual citizen be made to resign). The mechanism is usually used to require strong support for any measures considered to be of great importance. A referendum is passed when a national majority more than half of voters from all states and territories vote yes and when a majority more than half of voters in at least four of the six states vote yes.
To change Australia’s constitution, you need more than just a majority. To pass a referendum, the yes votes must get a double majority. This means two things must happen:
There must be a national majority: 50%, plus at least one, of the total votes across Australia should be a yes. All votes from all states and territories are included.
There must be most of state (this was introduced to protect the interests of the smaller states): 50%, plus one, of the total votes from the six states has to be yes, this means that at least four states have to vote yes (only the states count not the territories).
With the argument case law is present in the occurring cases in parliament. In 1999 Heather Hill was elected to the senate, her election was challenged in the high court because she held a dual citizenship of Australia and the United Kingdom. The high court in its decision, Sue v Hill, agreed that the dual citizenship made Hills election invalid because it contravened section 44 (i) of the constitution. Legal guidance also states that the people who drafted the nation’s constitution more than a century ago were generally British subjects, they too would have found themselves being kicked out of parliament.
In common law, a precedent is a legal case that establishes a principle or rule. This rule is then used by the court or other judicial bodies use when deciding later cases with similar issues or facts. The use of precedent provides predictability, stability, fairness, and efficiency in the law. With this any cases that occurred in the past that included anything to do with parliament MP’s having dual citizenships must be followed accordingly to what the high court has said.
The constitution commission report of 1988 recommended that section 44(iv) be replaced with more specific provisions. If the recommendation was taken into place in 1988 the problem the MP’s have today would not occur and the high court would know what to do but due to the fact the that the recommendation was dined the problem is still occurring. The high court should take into the MP’s that had a valid reason of why they did not know they were a dual citizen and acknowledge that a change should be made.