Dual-Citizenship and the Right to Hold Office in Australia

By: Sarah Payne Faris

Australia and New Zealand, separated by the Tasman Sea, share not only a common water body, but maintain a close partnership concerning trade and other economic agreements.  The Trans-Tasman Mutual Recognition Arrangement (TTMRA), for example, aims to develop a unitary system between the two countries in a variety of different ways.[1]  The TTMRA is dedicated towards promoting co-operation between the regulatory systems within each country.[2]  To this end, occupational licenses that are obtained in either country will be valid in both, provided that the job at issue is of the same caliber.[3]

Similarly, The Australia-New Zealand Closer Economic Relations Trade Agreement (ANZCERTA), is considered “one of the most comprehensive bilateral free trade agreements in existence . . . cover[ing] substantially all trans-Tasman trade in goods.”[4]  In addition to recognizing trans-Tasman occupational licenses and goods, food standards are also universalized between the two nations.[5]  Its ultimate goal is to eliminate trade barriers in such a way as to provide mutually beneficial growth for both New Zealand and Australia.[6]

The cooperation between these two pacific countries extends beyond merely that of economic agreements.  On its national website, New Zealand affirms the nature of the relationship, stating that the two nations “work together in virtually every area of government.”[7] The statement continues with the assertion that “close historical ties, family links, and friendships have helped a strong sense of kinship and shared values between us.”[8] 

Reflective of this kinship, in 2016, the prime ministers of each respective nation issued a joint statement.[9]  They promised that together, the countries would tackle defense and cyber security issues, as well as immigration issues.[10]  This statement even included an announcement of a “unique pathway to citizenship for New Zealanders who are long-term residents in Australia.”[11]  Prior to 2016, citizens of both New Zealand and Australia were entitled to significant benefits in both countries, including the right to collect social security, receive health care, and utilize the school system.[12] A matter of contention, however, exists in the perception that reciprocity is more beneficial for Australians in New Zealand than for New Zealanders in Australia.[13] As of 2016, however, the governments further developed the familial relationship with one another by expanding the opportunity for New Zealanders to obtain Australian citizenship.[14] 

Scheduled to take affect in July 2017, citizenship may be obtained in this manner via the Migration program in place in Australia.[15]  It is only available to New Zealanders who 1) were Australian residents five years immediately prior to the visa application; 2) can demonstrate via income tax returns that they have met a specified salary threshold; 3) can “satisfy mandatory health, character, and security checks.”[16] Interestingly, such citizenship is granted to New Zealanders who arrived in Australia during a very specific window – between February 26, 2001, and the date of the announcement, February 19, 2016.[17]  It is, notably, not a permanent fixture within the law.[18]

In spite of the extremely close relationship between Australia and New Zealand, however, Australia has strict regulations preventing individuals who are dual citizens from holding political positions.  This even includes dual citizens of Australia and New Zealand.  This issue recently received international attention when in October 2017, five members of the Australian government, to include the deputy prime minister, were disqualified from office based on a ruling by the Australian high court.[19]

Interestingly, the deputy prime minister, Barnaby Joyce, was actually born in Australia, and only maintained dual citizenship with New Zealand based on the fact that he father was born across the Tasman Ocean as a New Zealander.[20]  He claimed to have not even known about this citizenship connection until August 2017.[21]  However, even after subsequently renouncing this citizenship, he was disqualified from office by the court.[22]

The basis for this high court decision is rooted in the Australian Constitution.[23]  Specifically, the Constitution states that anyone who “is under any acknowledgement of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power”[24] is determined to be “incapable of being chosen of or sitting as a senator or a member of the House of Representatives.”[25] The Constitution further states that anyone who does occupy such a seat when they are in fact ineligible to do so, is “liable to pay the sum of one hundred pounds to any person who sues for it in any court of competent jurisdiction.”[26]   

It has been suggested that this prohibition should be repealed on the grounds that it is outdated, unclear, and seems no longer practical based on the overwhelming number of dual citizens in Australia.[27]  Indeed, the reference to pounds is in itself outdated.  The Australian currency switched from pounds to the Australian dollar in the 1960’s.[28]  While this example appears to be an issue of semantics, it does illustrate the reality that changes have occurred in the manner in which Australia functions that have not been reflected in the Constitution.  Arguably, the dual citizenship prohibition on holding political office is just such an example. 

Historically, there has been an influx of New Zealanders migrating across the Tasman to Australia.  While it appears that this is still occurring in significant numbers, recently, there have been population shifts.  For the last three years, each year roughly 15,800 New Zealanders have returned home from Australia. This is a striking difference from the roughly 8,900 per year that was returning home each year in the thirty-five years prior.[29] Additionally, the number of Australian citizens migrating east to New Zealand has also increased.[30]  As mentioned briefly above, It has been suggested that New Zealanders in Australia do not receive the same benefits as Australian receive in New Zealand, and it is possible that this could be a contributing factor to this shift.[31]

Both historically and currently, New Zealand and Australia enjoy a close, mutually beneficial relationship. Although it does not appear that the recent reaffirmation of the Constitutional provision denying political office to dual citizens has tarnished that relationship, it seems that amending the policy would be worth consideration.  This may be particularly so if Australia wishes to restore the incoming flux of New Zealanders, and it is determined that the reason for its halt is that they do not receive equivalent benefits as Australians in New Zealand. Additionally, with the new path to citizenship available for New Zealanders, it seems all the more appropriate. 

[1] Ministry of Business, Innovation, & Employment, Trans-Tasman Mutual Recognition Arrangement (June 2, 2017), http://www.mbie.govt.nz/info-services/business/trade-tariffs/trade-environment/economic-relationship-with-australia/trans-tasman-mutual-recognition-arrangement

[2] Id.

[3] Id.

[4] Australian Government: Department of Foreign Affairs and Trade, Australia-New Zealand Closer Economic Relations Trade Agreement, http://dfat.gov.au/trade/agreements/anzcerta/Pages/australia-new-zealand-closer-economic-relations-trade-agreement.aspx

[5] Id.

[6] Id. 

[7] New Zealand Foreign Affairs & Trade, Our Relationship with Australia, https://www.mfat.govt.nz/en/countries-and-regions/australia/

[8] Id.

[9] Australian Government, supra note 4. 

[10] Id.

[11] Id. 

[12]Harriet Spinks & Michael Klapdor, New Zealanders in Australia, Parliament of Australia, (Aug. 29, 2016), https://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/rp1617/Quick_Guides/NZAust

[13] See Dan Petrie, New Zealanders Continue to Return Home in Strong Numbers, news.com.au, (Oct. 18, 2017), http://www.news.com.au/finance/economy/world-economy/new-zealanders-continue-to-return-home-in-strong-numbers/news-story/d325d001e63b5331a80fa04fc0426354

[14] Id.

[15] Id.

[16] Id.

[17] Id. 

[18] Id. 

[19] Rick Noack, Australia’s Own ‘Birther Controversy’ May Bring Down the Government, The Washington Post, (Oct. 27, 2017), https://www.washingtonpost.com/news/worldviews/wp/2017/10/27/australias-own-birther-controversy-may-bring-down-the-government/?utm_term=.c15b486d8a3a,

[20] Id. 

[21] Id. 

[22] Id. 

[23] Lorraine Finlay, Here’s Why you can’t be a Dual-Citizen and an Australian Politician.  Business insider (Oct. 27, 2017), https://www.businessinsider.com.au/here-is-why-you-cant-be-a-dual-citizen-and-an-australian-politician-2017-7. 27

[24] Australian Constitution s 44(i).

[25] Australian Constitution s 44.

[26] Australian Constitution s 46.

[27] Finlay, supra note 22.

[28] Damien Murphy, Money Exchange: When Australia Swapped Pounds for Dollars, Sydney Morning Herald (Feb. 13, 2016), http://www.smh.com.au/nsw/money-exchange-when-australian-swapped-pounds-for-dollars-20160211-gmrm3a.html.

[29] Stats NZ, Kiwi Exodus to Australia Bungees Back (July 21, 2016), http://archive.stats.govt.nz/browse_for_stats/population/Migration/international-travel-and-migration-articles/kiwi-exodus-australia.aspx.

[30] Id. 

[31] Petrie, supra note 13, see also Inga Stünzner, New Zealanders Living in Australia say their Rights are Being Eroded, ABC (June 26, 2017), http://www.abc.net.au/news/2017-06-26/new-zealanders-living-in-australia-see-citizenship-rights-eroded/8644890.