The across-the-ditch birth of the Greens senator Scott Ludlam may have ended his political career.
You could be forgiven for asking why, when millions of Australians hold dual citizenship, they are barred from entering parliament.
You may also be wondering where the loss of the deputy leader puts the Greens, who now face a messy process to find Ludlam’s replacement.
The reason for Ludlam’s resignation lies in section 44(i) of the constitution, which sets out several conditions of eligibility for public office. The constitution makes it plain that election is barred for:
Any person 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.
It’s a rule designed to ensure loyalty to Australia from its elected representatives. But it also raises questions about the quality of representative democracy and freedom of political participation in modern Australia.
The issue of dual citizenship was first raised not long after Bob Hawke’s 1992 resignation from parliament. Hawke’s departure sparked the Wills byelection of April 1992, which was won by the independent Philip Cleary.
The eighth-ranking candidate, Ian Sykes, mounted a high court challenge against Cleary’s eligibility because he fell foul of another part of the constitution, owing to his concurrent employment at a state education department.
At the same time, Sykes challenged the eligibility of the second and third candidates, John Delacretaz and Bill Kardamitsis, both of whom held dual citizenship. Delacretaz, the Liberal candidate, was born in Switzerland, and Kardamitsis, Labor’s candidate, was born in Greece. Both had lived in Australia for decades and had little association with their former countries.
The key question – and one that split the high court bench five to two – was whether either had taken “reasonable steps” to renounce their second citizenship.
Was it enough that the pair renounced any foreign allegiances during their Australian naturalisation ceremonies? Or did they need to take all possible steps to extinguish any formal links to the second nation?
The majority found Delacretaz and Kardamitsis had not done enough to renounce their past citizenship, and both were ruled ineligible for election.
But the two dissenting judges found it was enough for the pair to have had a long-term association with Australia and to have renounced citizenship during their naturalisation ceremonies, as long as they had not attempted to benefit from their second citizenship in any way.
The court agreed that what was “reasonable” depended on the circumstances of each case. Particularly relevant for Ludlam, should he choose to challenge, is his awareness of past citizenship. The high court held that if an individual believed their past citizenship had been renounced through the process of Australian naturalisation, that should be taken into account.
More recently, the Tasmanian Liberal senator Eric Abetz faced a high court challenge to his eligibility after it emerged he still held German citizenship. Abetz also argued he had renounced his other citizenship through the naturalisation process. The case, launched by the antiques dealer John Hawkins, was withdrawn and never reached a hearing before the high court.
Derryn Hinch, now a senator himself, has previously questioned whether Tony Abbott holds dual British-Australian citizenship, something Abbott’s office has denied.
And earlier this year Labor challenged the eligibility of Lucy Gichuhi, who replaced the Family First senator Bob Day and now sits as an independent. The high court rejected the challenge on the basis there was insufficient evidence that Gichuhi had not renounced her Kenyan citizenship.
Much has changed since 1992. New Australian citizens are no longer required to renounce foreign allegiances during citizenship ceremonies, instead simply declaring their “loyalty” to Australia.
The wording of the constitution is unambiguous. But it does raise complex and difficult questions. What would happen, for example, if a refugee who had fled political persecution was required to seek renunciation past citizenship from a potentially hostile government?
Or, in Ludlam’s case, what happens when an individual maintains they were genuinely oblivious of a former citizenship?
How will Ludlam be replaced?
It may take weeks to clarify the process to find Ludlam’s replacement. A premature resignation would typically spark a casual vacancy, which would allow the Greens to choose his replacement.
But Ludlam’s case is different. Because he has resigned under a cloud about his eligibility, the Senate is likely to refer the matter to the court of disputed returns – the high court. That was what happened when the Family First senator Bob Day resigned last year.
If the court rules Ludlam’s election invalid, his replacement will be selected by a countback of the WA Senate votes at last year’s election.
Two Greens senators were elected in the double-dissolution election and it is understood a countback would probably deliver the seat to Jordan Steele-John, a 22-year-old who was third on the Greens’ ticket.
Steele-John is unsure of his intentions at this stage. If he decides not to stand, he would need to immediately resign. That would prompt a casual vacancy.
The Greens would then choose their own replacement through a preselection process that could last months.