Australia: Citizenship and Consent

And yet another saga of citizenship.  This one concerns Australia, a country of immigration whose elected representatives are being scrutinized in light of Section 44 of the nation’s constitution.  Any individual, it says, 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 citizen of a foreign power”  may not run for or be elected as a senator or member of the national parliament.   In other words, a dual citizen may not be an elected representative of the people at the federal level in Australia.

That’s the law and it’s pretty clear.  (The Australian high court in fact ruled on the matter a few days ago concerning those who did not know they were duals. ) That is not, however, the end of the matter.  Though Australian politicians  who are dual citizens have been deemed ineligible for office there is now a national discussion about whether or not a single citizenship really should be a requirement for public office.  Does the 1901 Australian constitution still reflect the will of the people in 2017?  If so then how best to enforce it?   The Green party argues that “citizenship audits” by immigration and citizenship experts is one way to resolve the matter.

Is single citizenship a reasonable requirement for elected officials?  Well, this question goes to the heart of one of the greatest fears around dual citizens – that dual citizens have dual loyalties.  This is particularly pertinent for elected officials in a democratic nation-state who are expected to act solely in the interests of the people who elected him or her. There are indications in other countries that voters do care about citizenship status.  Ted Cruz, a US senator, renounced his Canadian citizenship in 2014 even though there is no legal impediment to his holding office as a dual.   Renho, a Japanese politician, had to declare her choice of Japanese nationality after it was shown that she still had Taiwan citizenship though her father.  In France Eva Joly, a French politician from Norway has been controversial because she is a dual.

What’s interesting about these cases and that of the Australian politicians caught in these citizenship controversies is that the other citizenship (the one causing the issue) was not one that was actively chosen.  The citizenship was conferred on them by the other state’s citizenship laws. They had a first or second-generation immigrant parent who was a citizen of another country and that’s enough under some countries’ laws to make them citizens, too.  Or, as in the case of Joly, they have a citizenship that they did not renounce when they naturalized in another country.  Some of the Australian politicians, in fact, were unaware of their dual status.

Is this unusual?  Not at all.  Ascription is the general rule, not the exception when it comes to citizenship and it’s assumed far too often that the actions of the state are congruent with the wishes of the individual. Thus, citizens of democratic nation-states have this erroneous idea that citizenship is purely a matter of choice.  To think otherwise would be to admit that most members of a nation state’s political community did not actively consent to be governed. Rather, they passively accepted a status conferred upon them by the state and then simply acted as citizens exercising the rights and submitting to the responsibilities of that state’s citizenship.  Behavior  is deemed to be consent (and there are problems with that but let’s roll with it.)

So a better question here about these politician duals might be:  Did the dual citizen in question ever actively consent to the claim of the other nation-state?  Has he or she sworn allegiance, sought a passport, paid taxes, voted, or given any other indication that this citizenship is active?  In other words has he or she consented by word or deed to the claim of the other state?  If she hasn’t than honestly I don’t see that there is much to be concerned about.  But that judgement could perfectly well be left up to the voters who, one hopes, would ask questions about the other citizenship and the candidate’s relationship to the other country.  They could then make up their own minds.

What is a bit troubling in the Australia debate over politician and dual citizens is how easily Australia seems more than happy to recognize the claims of the other state on its own citizens (even those who were unaware that some state had conferred citizenship on them.  Nothing forces Australia to recognize the other citizenship(s). They could perfectly well say that as far as they are concerned all Australians in Australia only have one citizenship.  If another state wants to make a claim that’s their business but it would be irrelevant to the Australian government and any responsibilities that go along with that other citizenship could not be applied to any Australian in Australia.  And thus there would be no need for those “citizenship audits.”

So I would argue that Section 44 is due for a revision.  Insofar as multiple citizenship is an issue, it is one that the voters can perfectly well decide for themselves based on their questions to the candidates.  But as far as the law is concerned instead of assuming that a second citizenship conferred by another state is an active one that was chosen by the individual, they can make a very different one:  that the claim of the other state over that citizen has no validity in Australia and neither confers benefits nor poses impediments to participation in public life.