The irony in Barnaby Joyce’s Kiwi citizenship dilemma

ANALYSIS: They don’t come much more Aussie than Barnaby Joyce, but his possible New Zealand citizenship could end up being a really big deal.

ANALYSIS

Few MPs put on the ocker like Nationals leader and Deputy Prime Minister Barnaby Joyce, so it’s a shock to find he technically has an allegiance to New Zealand.

It’s may only be a technicality (he may have inherited New Zealand citizenship from his father) but it resides in the Constitution and cannot be laughed off by the clunky jokes Mr Joyce is prone to tell.

Ironically, Australian-born Mr Joyce’s biggest contribution to constitutional reform might come when he is hauled before a court.

Nobody believes he ranks a Kiwi allegiance above his loyalty and duty to Australia, and his current plight reinforces the urgent need for change. But officially he could be a man of torn allegiances.

The High Court could consider tidying up the archaic constitutional provisions which are quickly depleting the number of elected representatives on the basis of citizenship and could see Mr Joyce depart.

Barnaby Joyce could be up the proverbial creek without a paddle. Picture: AAP

By interpreting the bothersome Section 44 in a way which brought it up to date, the court could end the current mess now affecting the eligibility of four senators and MPs — and counting.

And it could save the nation the expense and the disruption of a constitutional referendum.

But first, all candidates for Parliament should diligently fill out the required forms. It’s up to them to establish their qualifications for election.

Labor might give lessons on this to other parties, because it seems to do it better than most.

Section 44 says candidates can be disqualified if they are “under any acknowledgment 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 a citizen of a foreign power”.

The High Court has already done some interpretation of this section. In 1992 it disqualified two candidates on citizenship grounds — Greek and Swiss.

But it underlined the reasonable get-out that they might have been eligible had there been “what amounts to reasonable steps to denounce foreign nationality”.

So if you have tried real hard to shed a nationality, you could get approval.

The rogue (citizen’s) gallery: As a Canadian, Greens Senator Larissa Waters was forced to resign.

WA Greens Senator Scott Ludlam didn’t know he was a Kiwi.

Liberal Senator Matt Canavan blamed his mum for applying for Italian citizenship.

The court has not made significant changes since then, perhaps because there haven’t been many cases to work on. That changed dramatically in 2017. Lawyers will have a lot to work with after the procession of MPs and senators lining up outside the High Court.

Then court might demand a more reasonable test for the S44 prohibition of “any acknowledgment of allegiance, obedience, or adherence to a foreign power”.

One might expect some demonstration of allegiance and obedience would be needed before that bit was invoked.

Certainly it is hoped it will inject some common sense into the bar on a candidates who are “a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power”.

In a country with a population almost 100 per cent the product of migration waves since 1788, the citizenship question is not as uncomplicated as it was in 1901 when we were all British — whether we liked it or not.

As Prime Minister Malcolm Turnbull wrote to Opposition Leader Bill Shorten today: “With around half of all Australians having a foreign-born parent, and with many foreign nations having citizenship laws which confer citizenship by descent, regardless of birth, the potential for many, possibly millions of Australians unknowingly having dual citizenship is considerable.”

One Nation Senator Malcolm Roberts’ citizenship is still under a cloud. He insists he’s not British.

Perhaps in future the court could also look at the S44 bar to candidates who have an office of profit under the Crown, which was intended to prevent MPs from funnelling taxpayer money to their personal use.

But Liberal Jackie Kelly was vetoed because she was in the RAAF when she nominated, not even when she stood for election. Labor’s Phil Cleary was knocked off because he was a teacher — a state school teacher — on leave at the time.

It will be entirely up to the judges.

The High Court has taken on big constitutional interpretation matters before, such as its ruling we have an implied right of freedom of speech on political matters.

This could be its moment to again come to the aid of a Constitution which could be impeding rather than reinforcing active democracy.