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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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