The Problem of Applying Foreign Law under Section 44(i) of the Constitution

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 internal problems 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 44(i). It asks, when will the Court defy the word of foreign law? And on what principled basis?