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The controversial law that forced a senator to resign for being a dual citizen

14 July 2017 7:52 AM
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The controversial law that forced a senator to resign for being a dual citizen

Australian Greens Senator Scott Ludlam said it was only recently brought to his attention that he holds dual citizenship of Australia and New Zealand, making him ineligible to hold office. Picture: AAP /Lukas Coch.

AUSTRALIAN Greens senator Scott Ludlam is leaving federal parliament after finding out he is ineligible to hold elected office under a controversial law that has been described as “outdated” and “bizarre”.

The party’s co-deputy leader said it was recently brought to his attention that he holds dual citizenship of Australia and New Zealand which is a breach of the Australian Constitution.

The “ridiculous oversight” means he was improperly elected more than a decade ago.

While the US requires presidents to be born within the country it is not a requirement for Australian prime ministers.

Six Australian prime ministers have been born in the UK, and one in Chile.

But holding dual citizenship currently disqualifies anyone from being a member of parliament, according to Article 44(i) of the Constitution.

“It is also possible that any person may seek enforcement of a penalty against a person who has taken a seat in the parliament in breach of the Constitution or electoral act,” Section 44 reads.

“This right to sue is created by the Common Informers (Parliamentary Disqualifications) Act 1975.”

In a tweet, Mr Ludlam said he had “no wish to draw out the uncertainty or create a lengthy legal dispute, particularly when the Constitution is so clear”.

“I am resigning as Senator for Western Australia and Co-Deputy Leader of the Australian Greens, effective today,” he wrote.

“This was my error, something I should have checked when I first nominated for preselection in 2006.

Mr Ludlam was born in Palmerston North in New Zealand and left the country with his family when he was three.

He settled in Australia not long before his ninth birthday, before being naturalised when he was in his mid-teens.

“[I] assumed that was the end of my New Zealand citizenship,” he said. “It is entirely my responsibility — it wasn’t the way I was hoping to go out.”

The premise of Section 44 comes from an era where the notion of exclusive “national loyalty” was predominant. But several social media users took to Twitter to express their bewilderment over the apparent “outdated” legislation that many claimed should be amended or deleted completely.

In a similar case, Heather Hill — who was elected to the Senate in 1998 — was challenged in the High Court the following year on the grounds that she held dual citizenship of Australia and the UK. The High Court ruled that the dual citizenship made Ms Hill’s election invalid because it contravened section 44 (i.) of the Constitution.

Section 44 of the Australian Constitution has subsequently been the topic of regular review and debate.

In 1980, the Senate referred constitutional qualification and disqualification issues to its Standing Committee on Constitutional and Legal Affairs.

The Committee’s subsequent report, The Constitutional Qualifications of Members of Parliament, recommended that every one of the five subsections of section 44 be either amended or deleted. But that never eventuated.


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