Section 44’s rule on dual citizenship would claim plenty of state political scalps. Why doesn’t it apply?

COULD state and territory politicians face the same sort of saga over dual citizenship as our federal MPs? There’d be more than a few in trouble if similar rules applied.

If New South Wales Premier Gladys Berejiklian was a federal politician instead of a state one, she’d likely face the same predicament as Barnaby Joyce. Picture: AAP

IF Gladys Berejiklian was a federal politician rather than a state one, she’d likely find herself in a similar predicament to Barnaby Joyce.

The Premier of New South Wales was born in Sydney in 1970 to Armenian parents and she almost certainly acquired automatic citizenship by descent of the eastern European nation.

Armenia has the same kind of view as New Zealand — an approach that’s put the career of our Deputy Prime Minister in jeopardy — being that if mum or dad is a citizen, so are you.

Under Section 44 of Australia’s constitution, being a citizen of any other country makes one ineligible to stand for parliament.

New South Wales Gladys Berejiklian is likely an Armenian citizen by descent. Does it matter? Picture: John Grainger

A cloud would also hang over Queensland Premier Annastacia Palaszczuk if she were a federal member of parliament.

She was born in Brisbane’s west in 1969 but her father was born in Germany to Polish parents.

He would’ve likely been granted automatic Polish citizenship, and so too would Ms Palaszczuk. She’d also be eligible for German citizenship as it happens.

But unlike Mr Joyce, Nationals Senator Matt Canavan and several others in Canberra at the moment, Ms Palaszczuk and Ms Berejiklian don’t need to lose any sleep.

So why aren’t the states and territories bound by the same kind of rules excluding dual citizens as Section 44?

University of Queensland Professor Graeme Orr is an expert in constitutional law and explained that the states and territories have a different approach.

“On January 1 in 1901 when Australia was born, it was born with what’s called a rigid constitution where the only way to make changes is via a referendum with a majority,” Professor Orr said.

“Whereas the states inherited the same model they’d always had, which is a system from Britain, where your fundamental laws aren’t written in stone. They’re ordinary acts of parliament than can be updated with a parliamentary majority.”

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Queensland Premier Annastacia Palaszczuk needn’t lose any sleep about her possible dual citizen status. The rules for states are different to federal politics. Picture: AAP

When changes are needed, states and territories can do so without too much fuss. In a federal sense, a costly and logistically complex public poll is required.

In their respective constitutions, almost all states make clear that an MP being a dual citizen at the time of election isn’t an issue. Only a few have rules about a sitting member actively taking out another nationality.

“Victoria is even more liberal — they don’t have any (rules) about it at all,” Professor Orr said.

The issue now engulfing Canberra is indicative of the problems that can arise from having a rigid constitution, he said.

Back when it was being written in the late 1890s, no one could’ve imagined how much the world would change.

“The question of foreign powers was much, much broader,” Professor Orr said.

“They didn’t consider anyone in the Empire a ‘foreigner’ because we were all subjects of the (King or Queen). In an ironic way, even though we’re a more globalised society, Section 44 has become so narrow that we were more global when we were part of the Empire.”

Deputy Prime Minister Barnaby Joyce discovered he was automatically a dual citizen of New Zealand by descent, possibly putting him in breach of Section 44. Picture: AAP

While the balance of power in the House of Representatives is at risk, along with the careers of several politicians, Professor Orr doesn’t consider the recent weeks of drama to be a crisis.

“It’s a farce with a bit of tragedy,” he said.

“But it feeds into a certain narrative that feels quite cynical. The reality is these rules are catching all sorts of people from different backgrounds and political parties. The rules are complex.”

It wasn’t until a few days ago that he discovered his own kids are dual New Zealand citizens, Professor Orr explained.

“My wife was born in Palmerston North during a family trip. Even someone like me, who has studied public law for 20 years and spent a great deal of time thinking about electoral law, wasn’t completely clear on it.”

Greens MPs Larissa Waters and Scott Ludlam were forced to resign after discovering they were dual citizens. Picture: AAP

The country and parliament could benefit from constitutional reform, Professor Orr said, particularly when it comes to Section 44.

But the money and time required to do so via referendum means it probably won’t happen.

“What I think will occur instead is that for the next few years people will be obsessed with this and will triple-check their citizenship status.

“And of course, every candidate in the next election will have their family histories dug into by rival parties and the like.

“Then in five or so year’ time, it’ll be forgotten again.”