Few Australians would call themselves constitutional experts, but over recent months most would have become familiar with one particular part – section 44 – which disqualifies a candidate for the Commonwealth Parliament from election if they have been found to be a citizen of a foreign country.
Section 44 also bars people from Parliament for being an undischarged bankrupt, for holding “an office of profit under the Crown”, for committing treason, and for being convicted of any crime resulting in imprisonment for a year or more.
The section has been brought to the public eye previously, most notably in 1992, when independent candidate Phil Cleary won a byelection but was successfully challenged by another candidate, Ian Sykes, on the grounds that Cleary was a schoolteacher and therefore acting in an office of profit under the Crown.
In the current Parliament an extraordinary four MPs have had to quit Parliament due to their circumstances being in breach of this section of the constitution; and it is not certain there will not be more.
Nationals Senator Matt Canavan (pictured) has been one of the surprising performers in the Turnbull Government, both managing the complex resources portfolio and with it the perennial conflict between environmentalists on the one hand and those wanting to develop the nation’s resources on the other.
He has been particularly hardworking in his home state of Queensland, and a strong advocate for the Adani coalmine.
Canavan has also been something of a rock to the mercurial Nationals leader and now Deputy Prime Minister Barnaby Joyce, often playing the role of battering ram in conflict with the Liberals, of whom Joyce now has to be, publicly at least, supportive.
So it came as a genuine shock to the Nationals and to the Government when Canavan had to step down as a minister after discovering he had dual citizenship with Italy, courtesy of his mother.
Two Greens senators also resigned from Parliament in the weeks preceding the Canavan bombshell. Larissa Waters confessed she had been a citizen of Canada, even though she left the country as an 11-month baby, while Scott Ludlum found he was still a citizen of New Zealand.
Canavan insists he did not know his mother had applied for Italian citizenship a decade ago for her entire family.
“I was not born in Italy. I’ve never been to Italy and to my knowledge have never set foot in an Italian consulate or embassy,” Canavan said when he stepped down as minister.
“My mother was born in Australia but was able to obtain Italian citizenship through her parents, who were both born in Italy.”
However, it has since emerged that the application for the Canavan family was made around the time his father Bryan Michael Canavan pleaded guilty to embezzling $1.6 million from food group Nestle.
Rather than resign from Parliament as the two Greens senators did, Canavan is fighting to stay in Parliament through the High Court.
“The legal advice that we have, it leads us to conclude I am not in breach of section 44 [of the constitution], and for that reason the Government will refer it to the court of disputed returns, the High Court,” Canavan said.
“It’s obviously important for me but it’s now a decision which is not just about my circumstances, it’s going to establish principles which go to the heart of eligibility of many Australians to stand for Australian parliament.”
Constitutional law expert George Williams has described the Canavan case as significant, arguing that the Queensland senator has a “good argument”.
Williams, who is dean and Anthony Mason professor of law at the University of New South Wales, says the constitution requires that reasonable steps be taken to sever foreign ties, “but what is reasonable when he lacked knowledge is yet to be determined”.
“It’s never been decided, so this will be a significant High Court case,” Williams said.
There are now calls for a referendum to be held on section 44, with proponents arguing the section is antiquated and cumbersome: that it is no longer tenable with such a large proportion of people now living in Australia who were born overseas.
Having a trade minister with two citizenships would be an absurdity. Who would they be advocating for?
Politicians are also asking that migrants and refugees who want to become Australian citizens adopt Australian values and adapt to an Australian way of life, yet we would permit our politicians to have allegiance to two countries?
Such a referendum would almost certainly be doomed.
Instead, candidates wanting a seat in the Australian Parliament will simply have to do their due diligence and ensure their paperwork is clean before they stand in an election.