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Section 44 Of The Constitution Means NOBODY Is Eligible To Be Elected To Parliament

Question Time is about to get a lot quieter.
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You think I'm joking. I'm not joking. Section 44(i) of the Australian Constitution says that a person is incapable of being elected to the Senate or the House of Representatives or sitting as a member of either house, if they are "a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power".

Let's break that down.

If you are "entitled to the rights or privileges of a subject ... of a foreign power", you are ineligible to be elected to, or to serve in, Federal Parliament. You don't have to have the rights and privileges of a subject of a foreign power -- you just have to be entitled to those rights and privileges.

Now, consider the Federation of Saint Kitts and Nevis, a country consisting of two tiny islands in the Caribbean Sea, remote from Australia, with a population smaller than Bathurst's. Under s. 44 of our Constitution, it is a "foreign power" (you don't have to be powerful to be a foreign power, just foreign).

Suppose that Saint Kitts and Nevis tomorrow amended its citizenship laws so that every Australian citizen was entitled to the rights and privileges of a citizen of Saint Kitts and Nevis. Result? Because of s. 44, all members of the House of Representatives and of the Senate would be rendered incapable of sitting in Federal Parliament. And, nobody would be capable of being elected to either house of Parliament to replace them. Section 44 of the Constitution thus has the weird effect of making eligibility to be elected to and serve in the Australian Parliament dependent on the citizenship law of other countries -- all 195 of them.

Your example is utterly hypothetical, you say. Absurd, you say. Could never happen, you say.

Guess what? Much closer to home, under recent and little-noticed changes to New Zealand law, Australian citizens now don't need a visa to live, study or work in the Land of the Long White Cloud. That's right: Any Australian citizen is entitled to live, study and work there.

That means we're ALL entitled to the rights and privileges of a subject of New Zealand -- not a citizen, with the attached rights and privileges such as voting -- but to be a subject of that country, living there, subject to New Zealand law, working or studying. And there's no doubt that New Zealand is a "foreign power" -- you only have to watch the All Blacks do the haka to realise that.

What does this mean?

New Zealand law has made every Australian citizen incapable of being elected to, or serving in, the Australian Parliament. It's not just Barnaby Joyce: It's everyone!


Robert Angyal SC is a Sydney barrister and mediator with dual citizenship. He has no intention of running for Parliament.

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