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31 Bond L. Rev. 1 (2019)

handle is hein.journals/bondlr31 and id is 1 raw text is: The Problem of Applying Foreign Law under Section 44(i) of the Constitution KYRIACO NIKIAS* Abstract Dual citizens are ineligible to sit in the Federal Parliament by virtue of section 44(i) of the Australian Constitution. In 2017 in Re Canavan, the High Court took a strict interpretation of that section, meaning that dual citizens are ineligible regardless of whether they have any knowledge of their foreign citizenship. The status of foreign citizenship, and therefore the status of eligibility under the Constitution, falls to a question of foreign law. This gives foreign law a peculiar significance in determining who may and may not participate in our democratic system of government. Most commentary on the dual citizenship crisis has centred on the constitutional implications, and the normative question of whether section 44(i) ought to exist. Instead, this article focuses on the imernalproblems of section 44(i) as it stands, according to its recent interpretations by the High Court Specifically, this paper is concerned with the exceptions to the application of foreign law under section 440). It asks, when will the Court defy the word of foreign law? And on what principled basis? I Introduction In July 2017, Greens Senators Scott Ludlam and Larissa Waters resigned from their places in the Federal Parliament after they revealed that they held a foreign citizenship. They were, therefore, ineligible to have been elected by operation of section 44(i) of the Australian Constitution. It soon followed that others, including Government ministers, might have been ineligible for election. The Parliament resolved to refer five other members, in addition to Ludlam and Waters, to the Court of Disputed Returns' for the determination of their eligibilities under section 44(i). Section 44(i) of the Constitution soon became the focus of a political and constitutional crisis. In Re Canavan, the High Court, sitting as the Court of Disputed Returns, held that five of those referred were ineligible at the time they nominated Research Associate, Adelaide Law School, University of Adelaide. I owe thanks to Professor Paul Babie for his helpful remarks on earlier versions of this paper. I also thank my friend Christian Andreotti, and the two anonymous reviewers for their constructive suggestions. Commonwealth Electoral Act 1918 (Cth) s 379.

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