Common(wealth) Knowledge #115: 'Job-sharing' Senate hopefuls defeated by South African dual citizenship

‘Job-sharing’ Senate candidates face unexpected end to election bid.

Lucy Bradlow and Bronwen Bock of the Better Together Party have lost their bid to run for a Victorian Senate seat as Australia’s first job-sharing politicians after realising that Bradlow possessed South African citizenship.

Section 44(i) of the Australian Constitution prevents a candidate from running for office if they are a citizen of a “foreign power.”

The basis for this is that this “allegiance, obedience, or adherence to a foreign power,” which grants them certain “rights or privileges,” may give rise to a conflict of interest.

In Sue v Hill (1999), covered in Common(wealth) Knowledge #5, the High Court clarified that every country is a ‘foreign power’; their relationship with Australia is not relevant for the purposes of this clause.

Bradlow and Bock had launched a Federal Court challenge on 12 February against the Australian Electoral Commission’s decision to refuse their candidacy. The second respondent named in their case was the Commonwealth government.

They had previously intended to run for the division of Higgins, until the AEC abolished it for the 3 May federal election.

The AEC’s decision relies on the fact that Bradlow and Bock are two separate individuals, arguing that this upsets the balance in the Senate, where it is intended by section 7 of the Constitution that all ‘Original States’ have “equal representation” with the same number of Senators.

Their case was filed too late to overturn the AEC’s decision, although that was not known at the time because no election date had been set. Justice Raper had set a hearing for oral submissions between 7 and 9 April.

However, on 25 March, Her Honour set aside the ordered hearing and summoned the parties to her chambers on 28 March. After the election date was declared at 9 am AEDT on the 28th, Justice Raper told the parties that there would not be enough time for the matter to be resolved before this election, but made it clear that the case was not being dismissed.

It is unknown whether the Commonwealth government gave Justice Raper advance notice on the 25th about the election date, nor at what date the parties and Court became aware of the dual citizenship.

To satisfy section 44(i), in Re Canavan (2017), the High Court unanimously ruled that a candidate must take “all reasonable steps” to renounce their other citizenship.

With the date set for 3 May, by the 28th, Bradlow would not have enough time to arrange the cancellation of her dual citizenship through the South African embassy in Canberra.

In Re Canavan, the High Court accepted the principle stated by the International Court of Justice in Liechtenstein v. Guatemala (1955), that “it is for every sovereign State … to settle by its own legislation the rules relating to the acquisition of its sovereignty.”

An Australian court cannot comment on the “legality of certain acts performed in the exercise of sovereign authority within a foreign country,” to quote the UK House of Lords in R v Bow Street Metropolitan Stipendiary Magistrate [2000] on the ‘act of state’ doctrine.

The High Court can only accept that a person is a lawful citizen of another country; it cannot determine whether someone is one or what ‘rights or privileges’ that citizenship bestows.

A ‘worst-case scenario’ is a politician compromising Australian national interests by leaking classified information to a country that they are also a citizen of. If caught, they could flee to their country’s embassy, which enjoys diplomatic immunity.

Although that particular scenario is extreme, and a conflict of interest is unlikely, there may be a ‘reasonable apprehension’ of bias. That apprehension still compromises public faith in Australia’s democratic system of government.

However, the ‘reasonable steps’ exception remains, and perhaps the best example of this exception is Senator Fatima Payman.

Ring-wing politicians and commentators, most recently Senator Pauline Hanson, have claimed that Senator Payman cannot hold office in Australia because she is also a citizen of Afghanistan.

Senator Payman and her family fled Afghanistan in 1999 after the Taliban assumed power. As a result, Senator Payman still holds Afghanistan citizenship, and has not been able to have it removed. Senator Payman declared that she took reasonable steps to remove it before the 2022 election.

However, Australia does not recognise the Taliban government, and thus does not have diplomatic relations with them. If Senator Payman had to take all possible steps, she would have to force the Australian government to open diplomatic relations with the Taliban, or otherwise wait for that to happen.

It could also be argued that because her family sought political asylum, there is no reasonable chance that her interests would be compromised, although that is arguably a political question more than a legal one.

Bradlow’s family also left apartheid South Africa in the 1980s, but Australia recognises and maintains diplomatic ties with South Africa.

While it is impossible to comment on this issue with absolute certainty, as the High Court has not ruled on the practicalities of reasonable steps, Senator Payman would likely have a very good defence.

Although Bronwen Bock is not a dual citizen, she will not run for office at this election in her own right because she has stated that she does not have the time to be a full-time politician.