Accidental Kiwis hit by archaic law

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.