On citizenship and election to high office

In the USA, being born in the USA is a constitutional requirement for standing for the Presidency. Anyone born outside the USA is not eligible to stand. There was once some talk of changing this so that Arnold Schwartzenegger aka the former governator of California, would become eligible to run for president. A sex scandal broke, he disappeared from public life, and so did the debate.

This is a constitutional matter. A legal fact. The political and cultural requirements are different, numerous and complex. For instance, there is no requirement in the constitution that a presidential candidate also be a Christian. But the current political reality is that candidates are compelled to state their adherence to the Christian religion, and end their speeches with ‘God Bless America’. This is so despite the fact that the framers of the American Constitution were determined secularists. Freedom of religion and freedom from religion is the secular liberal tradition. The private letters of US Constitution framer Thomas Jefferson clearly show his secular outlook and contain the phrase ‘separation of church and state’ to explain the First Amendment, which opens with this line:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof

Atheists are usually required to demonstrate our knowledge of your religion in order to refute it. In this tradition, Jefferson supported his argument by quoting the gospel of Mark (12:17):

“Then Jesus said to them, “Give back to Caesar what is Caesar’s and to God what is God’s.” And they were amazed at him.”

Because Barak Hussein Obama is a black Democrat with a funny sounding Muslim-ish name, a group of right wing conspiracists made up a story: that Obama was not born in the USA. This is simply a lie. It gained traction in all the usual ways: via the lie-spreading machine that is Fox “news”, funded by millionaire Donald Trump, who donates generously to the Republican Party and increases his already obscene wealth under the demonstrably terrible “economic policy” measures favoured by the extreme right wing. The whole shrieking mess can be translated into a simple invalid argument: Obama is black, therefore he is not eligible for the presidency.

The situation in Australia is different. Not for the first time, we have a foreign-born Prime Minister. This is neither a legal nor political problem. The constitution does not even mention the prime minister, let alone direct that the person holding that office be born in Australia.

The Australian constitution does, however, require all elected members of the Commonwealth Parliament to only hold Australian citizenship. That is, if you want to take up an elected position in the highest governing authority in our democracy, it is unconstitutional to do so if you also hold allegiance to a foreign power in the form of citizenship of another nation. You must be neither a non-citizen nor a dual citizen. You must be an Australian citizen and an Australian citizen only. This is in section 44, which sets out the conditions and requirements of election to the Commonwealth Parliament.

Section 44 of the Australian Constitution lists the grounds for disqualification on who may become a candidate for election to the Parliament of Australia. It states in particular:
44. Any person who –
(i.) Is under any acknowledgement 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 citizen of a foreign power: or
(ii.) Is attainted of treason, or has been convicted and is under sentence, or subject to be sentenced, for any offence punishable under the law of the Commonwealth or of a State by imprisonment for one year or longer: or
(iii.) Is an undischarged bankrupt or insolvent: or
(iv.) Holds any office of profit under the Crown, or any pension payable during the pleasure of the Crown out of any of the revenues of the Commonwealth: or
(v.) Has any direct or indirect pecuniary interest in any agreement with the Public Service of the Commonwealth otherwise than as a member and in common with the other members of an incorporated company consisting of more than twenty-five persons:
shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.

Here’s the thinking behind the provision on foreign powers. While the states run day to day internal matters such as health, education and policing, the Commonwealth must deal with external affairs on behalf of all Australians. So if a member of the Commonwealth Parliament holds dual citizenship, they immediately risk a conflict of interest where the Australian government is negotiating with, or going to war against, a foreign power. This is an unacceptable level of risk, because national security.

So to stand for public office as a dual citizen is in breach of our founding legal document, the law that authorises all other Australian laws. Again, this is not necessarily a problem. If the constitutional breach is seen as inadvertent, a mere oversight, we extend the principle of charity. This is the same rule that gives the batsman the benefit of the doubt. People make mistakes all the time. Where there are humans, there is human error. In the first instance, we give them the benefit of the doubt. They said it was an oversight, and it probably was. It’s a small problem with a simple solution.

Renounce the other citizenship, become an Australian-only citizen, if necessary hold a bye-election. If you win the bye-election after renouncing the non-Australian citizenship, the citizenship of a foreign power, both the legal and political problems are resolved. That’s it.

It is a different case altogether to stand for public office not once, but twice or more, while not being eligible to stand. The principle of charity no longer applies. You can no longer enjoy the benefit of the doubt. You’ve got form. It is certainly a substantially different matter if the person who did this is the Prime Minister, a person who holds qualifications from an elite university, a highly paid member of parliament who knows or ought to know that what they are doing is in breach of the constitution. Someone in this position is attributed with constructive knowledge, that is, if you say you didn’t know, the law says you ought to have known, in this case on the basis of the responsibilities and remuneration of your office, and the foundational principles of the Westminster system, such as ministerial accountability.

There is no crazy conspiracy ‘birther’ movement in Australia. There is a group of people on social (and now some traditional) media asking whether the Prime Minister has stood for public office while ineligible to stand, and if so, how many times. Comparisons with the birthers should be dismissed out of hand as weak analogy. That is, there are too few similarities, and those similarities are very broad (both arguments are founded in political oppositionism and use the constitution to make their case). There are too many highly relevant differences, and the differences are very specific. These are long-standing logical principles for identifying a weak analogy. It is an illogical comparison. The birthers seek to discredit the president and their campaign is racist as well as political. In Australia, we are asking whether the Prime Minister’s tendency to lie goes all the way to his election to public office itself.

The question is easily answered. The Prime Minister’s Office tells us he has renounced his British citizenship. It refuses to say when. The fudging and blocking and delaying from both conservative governments, in Australia and Britain, suggests the date will be politically harmful to the Prime Minister. My guess is that the date he renounced British citizenship is relatively recent, and will show that he wilfully, not inadvertently, stood for public office more than once, while being ineligible to do so.

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4 thoughts on “On citizenship and election to high office

  1. Glad to have read this, makes so much sense of the issue. Seems TA is in it for himself and not for the ‘good of the nation’. I saw a photo (I think it was real) of his passport issued in 2009 showing clearly his dual citizenship. So if it was real, his renouncement of dual citizenship is very recent.

    1. Looks recent to me. Bit if the photo thing was on a blog (including the Guardian comment-is-free) in any way linked to cam Smith, it was a deliberate fake. Cam is making merry hay, I am making serious legal points:)

  2. interesting article, a question if i may;

    1. as Australia is not a republic aren’t we still legally a part of Great Britain and if so wouldn’t a duality of citizenship between Australians and British be implied anyway?

  3. Question (probably too late, for all practical purposes): When constitutional issues are always “live”, could the nay-sayers’ argument (that any challenge to TA’s election was already too late because the Electoral Act allows only challenges made within 31 days of poll declaration), ever have been correct?

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