Ac­ci­den­tal Ki­wis hit by ar­chaic law

The Dominion Post - - Opinion -

Quirks of his­tory some­times cause big prob­lems in the present. In 1947, 23-year-old James Joyce from Dunedin moved to Syd­ney to at­tend uni­ver­sity. He later mar­ried and set­tled in ru­ral New South Wales. Seventy years later, his son Barn­aby ran afoul of an­other his­tor­i­cal relic – a 117-year-old pro­vi­sion of the Aus­tralian Con­sti­tu­tion – and the com­bi­na­tion of the two mat­ters has thrown the cur­rent Aus­tralian govern­ment into dis­ar­ray.

Barn­aby Joyce, the Aus­tralian Deputy Prime Min­is­ter, de­clared him­self ‘‘shocked’’ in Au­gust to dis­cover that he was a New Zealand cit­i­zen be­cause of his fa­ther’s birth­place.

Last week he said he was not to­tally sur­prised, how­ever, af­ter the Aus­tralian High Court de­cided that un­der Sec­tion 44 of the Aus­tralian Con­sti­tu­tion, he had been in­el­i­gi­ble to serve in Par­lia­ment.

Joyce, the ac­ci­den­tal New Zealan­der, is now out of a job. Hav­ing re­voked his Kiwi cit­i­zen­ship, he will be able to stand for Par­lia­ment again in a by-elec­tion and is ex­pected to win.

It is note­wor­thy that Joyce never had to ap­ply for the New Zealand cit­i­zen­ship he didn’t know he had, but he did have to fill out a form to get rid of it.

In the mean­time, the Aus­tralian govern­ment has lost its ab­so­lute ma­jor­ity in Par­lia­ment and must rely on Speaker Tony Smith’s cast­ing vote or sup­port from the cross-benches on any cru­cial votes.

Joyce was one of five Aus­tralian politi­cians de­clared in­el­i­gi­ble by the court de­ci­sion. The oth­ers were se­na­tors – an­other un­wit­ting New Zealan­der, a Cana­dian and two Bri­tons.

For the record, New Zealand does not have this prob­lem. Our par­lia­men­tar­i­ans are al­lowed to hold dual na­tion­al­ity pro­vided they do not swear al­le­giance to any other coun­try af­ter they are elected.

This rule caught out MP Harry Duyn­hoven in 2003, af­ter he ap­plied to re­new his Dutch cit­i­zen­ship. In his case, the New Zealand Par­lia­ment quickly passed a spe­cial law to solve the prob­lem.

The Aus­tralians, it seems, are not so prag­matic. Sec­tion 44 of their Con­sti­tu­tion ex­cludes any politi­cian who has al­le­giance to, is a cit­i­zen of, or is ‘‘en­ti­tled to the rights or priv­i­leges of a sub­ject or cit­i­zen’’ of a for­eign power.

Iron­i­cally, when the Con­sti­tu­tion was writ­ten in 1900, the idea of sep­a­rate Aus­tralian cit­i­zen­ship was still emerg­ing – Aus­tralians and New Zealan­ders were all thought of as Bri­tish sub­jects.

The same Con­sti­tu­tion, in­ci­den­tally, al­lowed New Zealand to be ad­mit­ted to the Com­mon­wealth as an Aus­tralian state, but Kiwi politi­cians of the day had other ideas. New Zealand cit­i­zen­ship ought not be a prob­lem, one would think, but un­der the law as it cur­rently stands, it is.

This pe­cu­liarly Aus­tralian prob­lem is prob­a­bly not go­ing to go away eas­ily. Maybe a dozen more politi­cians may be sus­pect.

For ex­am­ple, La­bor Sen­a­tor Katy Gallagher con­sid­ers her­self a true-blue Aus­tralian but her mother was born in Ecuador in 1943 to Bri­tish par­ents who were in that coun­try tem­po­rar­ily.

This means Gallagher may have fallen foul of Sec­tion 44 af­ter she came within the scope of Ecuado­rian cit­i­zen­ship rules when they changed in 2008, a full 65 years af­ter her mother was born. Gallagher de­nies this made her an Ecuado­rian, but the point is ar­guable.

In short, Aus­tralia may not have seen the end of this po­lit­i­cal mess. Per­haps a change to its Con­sti­tu­tion is needed to sort it out.

This pe­cu­liarly Aus­tralian prob­lem is prob­a­bly not go­ing to go away eas­ily.

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