EDIT: Note this article was written on 28 July 2017 – more than two weeks before it hit mainstream media on 14 August. So “today” is 28 July, not today, if you see what I mean!
The bizarre Section 44 controversy has already claimed a few victims and there will no doubt be more to come. One name that has been surprisingly absent from the discussion – until today – is that of Deputy Prime Minister Barnaby Joyce, whose father was from New Zealand.
After I flagged up the possibility of ‘citizenship by descent’ for Barnaby Joyce (and One Nation Senator Malcolm Roberts) over a week ago, The Australian has finally cottoned onto it today, including a response from Joyce:
Mr Joyce’s spokesman said he was not a dual citizen and had established that “many years prior to entering parliament”.
The NZ Department of Internal Affairs (DIA) seems to back him up, apparently telling the newspaper that a child born in Australia to a NZ parent needs to ‘apply’ to be a citizen by descent.
Here’s the problem – both Joyce and the spokesperson from NZ DIA seem to be wrong.
The law in black and white…
The 1948 British Nationality and New Zealand Citizenship Act (Section 7), which was in place in New Zealand when baby Barnaby was born, clearly states:
“Subject to the provisions of this section, a person born after the commencement of this Act shall by descent be a New Zealand citizen by descent if his father was a New Zealand citizen at the time of his birth”
The 1948 law has been replaced by other citizenship Acts and amendments since, though nothing revokes this clause (in fact it has been expanded it to cover children of NZ mothers too).
The official advice from NZ DIA also seems to disagree with its spokesperson quoted in The Australian. This is from its website today:
So unless Barnaby Joyce has renounced his NZ citizenship – which he has made no mention of to date – then he is a NZ citizen. And therefore ineligible to sit in Parliament under the current rules.
So should he resign?
In short, no. But he should come clean about it and send the case to the High Court. The fact that an elected representative who has never actively sought dual citizenship nor registered it is ineligible to sit in Parliament under the Australian constitution is pretty stupid, in my opinion, and the law needs to be changed (as it probably will be after all of this nonsense). The Joyce case just goes to show how over-reaching and outdated Section 44 is.
Additionally (and more importantly than my personal opinion!), if the High Court looks at the Joyce case (and other similar cases) it may decide that parliamentarians must ‘register’ their citizenship by descent in order for it to be fully recognised in Australian law. There was some previous discussion of this in the 1992 Sykes v Cleary case, which is a fascinating read for political and constitutional wonks. The big question is how far Australia goes in recognising ‘foreign’ citizenship law it has no control over. The extreme example being that North Korea* could, in theory, bestow citizenship on Malcolm Turnbull as part of a maniacal plot to bring down the Australian Government, without the PM’s knowledge or permission.
Nonetheless Barnaby Joyce should admit there is an issue here and deal with it formally instead of pretending it doesn’t exist.
* or perhaps more likely Donald Trump these days
***UPDATE 14 August 2017***
I emailed the NZ Department of Internal Affairs (DIA) on 3/8/17 to ask them to clarify their position on this, specifically in regards to whether somebody born at that time with a NZ father is automatically a NZ citizen. Despite several emails back and forth, I have yet to receive any answers to my questions. I will publish a response on this blog, if and when I get it.
***UPDATE 14 August 2017***
Just after the last update I found out Barnaby has now referred himself to the High Court and is apparently “shocked” to find out he may be a dual citizen, which is strange given he was asked about it a couple of weeks ago by a Sky journalist as a result of this blogpost, and lots of people have also contacted him on Twitter about it.
I note that he was contacted by the NZ Government last Thursday to raise it with him – the day after I contacted NZ DIA again to ask them to clarify the situation (incidentally, still no reply from them to my questions!).
***UPDATE 21 September 2017***
Emails from within NZ DIA about their handling of media enquiries into Barnaby Joyce’s citizenship have now been released under Official Information Act rules. The emails confirm that it was indeed my enquiries that led to the NZ Government realising Barnaby was a Kiwi. Read the emails