Does section 44 affect Jewish MPs?

Julian Leeser (left) and Josh Frydenberg at the Yom Haatzmaut party. Photo: Noel Kessel.

THE number of Parliamentarians ensnared by the disqualification provisions of section 44(i) of the Australian Constitution is growing by the day.

While at once heralding the success of Australia’s multicultural policy, with so many citizens born elsewhere, or who are first or second generation Australians, already exercising their citizenship rights fully, it has led to intense scrutiny of the breadth of the section itself.

At the margins of this scrutiny, stirred by the usual motivations, the allegiances of Jewish members of Parliament are being examined as potentially breaching the section.

Before dismissing this as furphy – first some context. Section 44(i) provides for three categories of people who “shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.”

They include (a) “any person who is under any acknowledgment of allegiance, obedience, or adherence to a foreign power” or (b) “is a subject or a citizen” or (c) “entitled to the rights or privileges of a subject or a citizen of a foreign power”.

The first is explicitly someone who has consciously acknowledged that allegiance and obedience, the second is a person who is, as a matter of law, a subject or citizen (which is why I believe the current Parliamentarians who have acknowledged they were citizens of another country when they nominated will be disqualified) and the third category has begun to be scrutinised further; people who are not formal citizens or subjects but are “entitled to the rights or privileges of a subject or a citizen”.

Some people have asked, why wouldn’t all Jewish people fall under this third category given the possibility of them acquiring Israeli citizenship through Israel’s Law of Return? The answer is simple.

Unless a Jewish person has actively taken up Israeli citizenship, they do not hold and are therefore not entitled to the rights or privileges of a subject or citizen of Israel.

While all Jewish people have an ability to apply for an Olah visa this is not automatically given, and even when it is given, it does not mean one automatically becomes an Israeli citizen.

This explanation has two parts to it. The Israeli Minister for Immigration has the power under the Law of Return 1950 to prevent someone who has expressed a desire to come to Israel as an Olah to do so. The Minister can determine that the person is a danger to the security and public health of the state and is not granted an Olah visa. While all Jewish people can apply, they are not necessarily granted that visa.

But even if a Jewish person is granted an Olah visa, the Israeli Law of Return 1950, is a distinct and different law to Israeli Nationality Law. Israeli Nationality law 1952 is explicit that a person who chooses (and is allowed) to make aliyah (and has come to Israel specifically on an Olah visa), still must decide whether to become an Israeli citizen.

They can choose the lesser, permanent residence status which does not give a person the rights and privileges (such as voting, duty to do army service) as Israeli citizens.

There are many Jewish people living in Israel who have been allowed to make aliyah and who have opted, under Section 2(c)(2) of the Israeli Nationality Act to make a declaration that s/he does “not wish to become an Israeli national”.

This provision was inserted precisely because some people who choose to live in Israel do not want to give up their former citizenship (if their other country does not allow dual citizenship) and more importantly do not take up the rights and privileges of citizenship in Israel, which include voting rights and army service.

Therefore, the only context where a Jewish member of Parliament would have to think about whether section 44(i) applies to them is if they had expressed a desire to settle in Israel, been granted an Olah visa, and then, had not made the declaration under the Israeli Nationality Law to take up permanent residence rather than citizenship and had become an Israeli national under the Israeli Nationality law.

Justice Brennan (later Chief Justice) of the High Court helpfully outlined the three parts to section 44(i) in his decision as part of the majority in the Sykes v Cleary case in 1992.

The key central aspect of each part of section 44(i) is the obligation and duty that may arise on that individual from falling under any of those categories – that is the duty, accepted under international law, that a State can call on its citizens (as Israel does) to serve in its armed forces.

A duty and obligation to serve in the armed forces of another country would have been in the framers’ minds when drafting the Constitution and that would disqualify a person from becoming a member of the Australian Parliament. Justice Brennan also helpfully explains how that third part of s44(i) reflected the English common law principle that aliens could also owe a form of allegiance or duty to the Sovereign.

The central UK case of Joyce v. Director of Public Prosecutions (1946) held that a non-subject owed allegiance to the Sovereign because of the protection afforded him by the issue of a British passport.

It was that type of scenario, of exercising the rights of citizenship of a country such as holding a passport and voting, without actually being a citizen, that the third part of 44(i) was including.

In my mind, however, those conflicts can be better managed through an amendment to the Electoral Act to include disqualification provisions that better reflect our multicultural society. Section 44(i) was drafted in a different period, with a different Australian community, which has evolved in so many ways, including Australians no longer just being British subjects. It is time for our politicians to advocate the repeal of section 44(i) and update our Electoral Act.

It won’t save those currently in danger, but it will ensure our Parliament better serves and reflects our multicultural, democratic society that we should all be proud of.

Kim Rubenstein is a professor in the ANU College of Law, Australian National University, and author of Australian Citizenship Law (2nd ed, 2016).