Falling Foul of Section 44(i): Australian's Dual Citizenship Saga and the Problems of Institutional Inertia and “Drift”

Abstract

Australia's “dual citizenship” crisis erupted in 2017 when several elected members of the federal parliament discovered that they were ineligible to sit because their dual citizenship status meant that they were in breach of s 44 (i) of the Australian constitution. The controversy has had enormous political consequences, prematurely ending several political careers and confirming that millions of Australians are ineligible to sit in the federal parliament because they hold dual citizenship. It has raised important questions about the contemporary relevance of s 44 (i) for multicultural, trans‐national Australia, given its association with singular, racialized (British‐colonial) notions of identity, allegiance and belonging. Using a historical institutionalist approach, and associated concepts of policy “drift”, I demonstrate the inevitability of the recent controversy, given decades of government inertia and both unintentional and purposeful non‐decision‐making on s 44, despite repeated expert warnings about its risks. I reflect upon the possible interests and ideological biases that have compelled political leaders’ resistance to proposals to decisively fix the constitutional anomaly by holding a popular referendum. I argue these failures have left Australia vulnerable to ongoing political instability and raise considerable concerns about its democratic quality.