Citizenship audit of Federal MPs will cause its own set of problems
THERE are growing calls for a citizenship audit of federal politicians to put an end to federal parliament’s citizenship fiasco. But it’s not as easy as it seems. It would cause its own set of problems.
Opinion
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THERE are growing calls for a citizenship audit of federal politicians to put an end to federal parliament’s citizenship fiasco.
The High Court has made clear that the rule is simple: If you are a dual citizen, you are disqualified and cannot sit in parliament.
Given that it’s possible to inherit foreign citizenship from your parents or even grandparents, many Australians are dual citizens and lots don’t even know it.
Federal politicians are in the same position and it is quite possible that more of them are dual citizens.
An audit of all politicians’ citizenship status might therefore sound like a good idea. But a citizenship audit would present its own set of problems.
The first problem concerns who would conduct the audit.
Proroguing, or suspending, parliament definitely would not help.
There is currently no government agency with responsibility for investigating the citizenship status of federal politicians. One option is for parliament to pass a law to give the job to a government agency and to require the co-operation of politicians.
This would be problematic because the government is supposed to be accountable to parliament, not parliament accountable to the government.
Another option is to set up a parliamentary committee to conduct the audit. However, Parliament is not sitting at the moment, so an audit would have to wait or parliament would need to be brought back early.
A citizenship audit would also involve a lot of work.
As we have seen, working out if a person is a dual citizen is not always easy. It is not always as straight forward as simply asking the foreign government to confirm whether or not a politician is citizen, even if the country in question speaks English.
Citizenship rules vary from country to country.
In some countries you are a citizen if you were born there.
In some countries you are a citizen if you were born there but only if one of your parents was a citizen.
In some countries you can be a citizen even if you’ve never been there because you automatically inherit citizenship from your parents.
And in some countries you can even inherit citizenship from your grandparents.
It gets even more complicated. Citizenship laws change over time. So you might be a dual citizen depending on what the rules were in the year your grandmother was born.
And what if your parents were born in a country that no longer exists because it has broken up into multiple new countries, as happened with Yugoslavia? Potentially, you might be a citizen of multiple foreign countries and not even know it.
There are 226 federal politicians, minus the handful who have already left during the citizenship saga. That’s a lot of parents, grandparents and possibly even great-grandparents to check out.
Then, of course, is the problem of laws of foreign countries being written in languages other than English.
A citizenship audit would cost a lot of money to do properly.
Lots of lawyers in lots of countries would be needed to carry it out properly. Then there’s the problem of who would conduct the audit.
There is currently no government agency with responsibility for investigating the citizenship status of federal politicians. One option is for parliament to pass a law to give the job to a government agency and to require the co-operation of politicians.
But this would itself be problematic because the government is supposed to be accountable to parliament, not parliament accountable to the government.
Another option is to set up a parliamentary committee to conduct the audit. Nor would an audit be the end of the saga.
The only body that has the power to make a final decision on disqualification is the High Court sitting as the Court of Disputed Returns.
And even after all this, an audit cannot throw someone out of parliament. Only the High Court can do that. At most, an audit would give the parliament grounds to refer someone to the High Court.
Then the High Court would need to be presented with evidence proving that the politician really is a foreign citizen. Even if a senator tried to resign after an audit found that they were a dual citizen, that would not be the end of the matter.
The rules for replacing a disqualified senator are different from the rules for replacing a senator who has resigned. If you are disqualified, you have no job from which to resign.
The rules for replacing a disqualified senator require a recount of ballot papers from the last election.
Only a court can order a recount, which means the matter would have to go to court.
And then what about the person who wins the recount?
Would there be a second round of auditing to check their status?
There is another option.
Anyone who can prove that a federal politician is technically disqualified is able to use the Common Informers (Parliamentary Disqualification) Act 1975.
That Act says that a disqualified federal politician is liable to pay $200 for each day they sat in parliament while they were disqualified ‘to any person who sues for it in the High Court’. It may be that there is money to be made from this citizenship saga, and not just for the lawyers.
► Dr Luke Beck is senior lecturer in Constitutional Law at Western Sydney University