Sir Geoffrey Palmer QC: Wrong to hold Barnaby Joyce's problem against a formal constitution

Opinion

By Sir Geoffrey Palmer QC

The Herald blames a written constitution for the problems Australia is experiencing with dual citizenship. That there are legal problems there is no doubt. That these events are valid arguments against having a written constitution in New Zealand in the sense argued for by the Herald is highly contestable.

It is true the relevant provision in the Commonwealth of Australia Constitution Act 1900, has not been amended since it came into force. Section 44(1) of the Constitution Act provides that anyone who "is 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" is ineligible to be a member of the federal Parliament.

This is the only mention of citizenship in the whole constitution. For many years the constitutional provision was not an issue. I recall living and working in Australia in the early 1970s where I could vote because at that time Australians and New Zealanders had the legal status of British subjects. What changed in Australia were the citizenship and other laws.

The Commonwealth Parliament has power to legislate on citizenship and it has. In 1948 it passed the Nationality and Citizenship Act, very similar to the New Zealand Act of the same year. It was replaced by the Australian Citizenship Act 2007.

Since the passage of the Australia Act 1986 the UK, and other Commonwealth countries such as New Zealand, where the Queen is the Head of State, have been a "foreign power". The difficulty this state of affairs poses for potential MPs in Australia has been known as long ago as 1988 and there have been a number of cases in the High Court of Australia.
The judicial decisions make clear that where there is dual citizenship the candidate has to have taken reasonable steps to renounce the one foreign to Australia.

To resolve these issues Australia had the choice of changing the citizenship laws or changing the constitution and it has done neither. It could for example by legislation bar dual citizenship for Australian citizens.

It is true that the Australian Constitution Act is far too hard to amend. Amendments have to be passed by an absolute majority of both houses of the federal Parliament or by one house twice, AND passed at a referendum by a majority of the people as a whole AND by a majority of the people in a majority of the states.

Do not conclude New Zealand is free from the issue because it does not have a written constitution. New Zealand has section 55(1) (b) and (c) of the Electoral Act 1993 similar to the provision in the Australian Constitution Act. The seat of an MP falls vacant if the MP "takes an oath or makes a declaration or acknowledgement of allegiance, obedience, or adherence to a foreign State, foreign Head of State, or foreign Power, whether required on appointment to an office or otherwise; or (c) if he or she does or concurs in or adopts any act whereby he or she may become a subject or citizen of any foreign State or Power, or entitled to the rights, privileges, or immunities of a subject or citizen of any foreign State or Power..."

Dual nationals can stand for Parliament and sit there, but they cannot while sitting there take any of the steps above.

In 2003 Harry Duynhoven MP got into difficulty with section 55. He had been entitled to Dutch citizenship by descent but since he was not living in Holland under changes in Dutch law he was required to reapply to enjoy that status. A bill was passed suspending the operation of the provision with retrospective effect in this instance, thus avoiding a byelection. But our law remains as it was then and could cause more difficulties to unsuspecting dual citizens.

The Herald's conclusion that what has happened in Australia is an effective argument against a written, codified constitution is flawed. Any constitution has to be kept up to date and the constitution Andrew Butler and I are working on will be much easier to change than that in Australia.

There are serious lessons to be gathered from the events in Australia but not the ones you have drawn. Citizenship can lead to many complications in a world where many people go and live in countries where they were not born or are descended from immigrants. Nations want to allow their people to have dual citizenship because people want it, although this produces complications. Parliament should be able to determine the law on the acquisition, loss and restoration of citizenship.

• Sir Geoffrey Palmer QC was Harry Duynhoven's counsel on the issue discussed above.