In handing down its decision on the fate of the seven dual citizen MPs today the High Court preferred a simple textual interpretation of the wording of s44(i) of the Australian Constitution meaning that all bar two of the MPs were found to be a subject or citizen of a foreign power at the time of their nomination for the 2016 federal election and that each was therefore incapable of being chosen or sitting as a senator or a member of the House of Representatives.
The Commonwealth Attorney General had argued for a construction of s44(i) which inferred ‘voluntariness’ on the part of the member in seeking or retaining dual citizenship as being necessary to consideration of eligibility or otherwise of being chosen or sitting as a member. The argument seeking to introduce a mental aspect of intent was arguably a creative one given the construction of the provision and one that has ultimately failed to find favour with the bench. The approach was possibly driven my necessity given the number of government MPs captured by the unprecedented citizenship conundrum and would have represented a significant precedent if supported, given that case law relating to provisions of the Constitution are not known for changing much or very often.
The High Court, informed by the arguments of Mr Tony Windsor and an especially appointed amicus curiae, was unpersuaded by the argument led by the Commonwealth and found that a literal interpretation of the wording of s44(i) accords more closely to the ordinary and natural meaning of the language, the majority views of precedential cases and that the drafting history of the provision doesn’t warrant a different conclusion.
“Laws are the sovereigns of sovereigns.”
Senator Canavan and Senator Xenophon retain their seats because neither was found to be a citizen of a foreign power or entitled to the rights and privileges extended to citizens of a foreign power.
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