LEGAL RAMIFICATIONS OF DUAL CITIZENSHIP DECISIONS IN PARLIAMENT.

If the High Court of Australia rules in favour of Section 44, and upholds the letter of the Law', would this mean that all Parliamentary decisions made by "dual citizenship" elected representatives, in actual fact be 'null in-void'. If so can a legal challenge be made to the High Court to challenge those representatives and their decisions both past and present, to verify if those decisions made are lawful?

What is Section 44?

Section 44 of the Constitution sets out restrictions on who can be a candidate for Federal parliament. In full it reads:

44. Any person who -

(i.) Is under any acknowledgement of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or citizen of a foreign power: or

(ii.) Is attainted of treason, or has been convicted and is under sentence, or subject to be sentenced, for any offence punishable under the law of the Commonwealth or of a State by imprisonment for one year or longer: or

(iii.) Is an undischarged bankrupt or insolvent: or

(iv.) Holds any office of profit under the Crown, or any pension payable during the pleasure of the Crown out of any of the revenues of the Commonwealth: or

(v.) Has any direct or indirect pecuniary interest in any agreement with the Public Service of the Commonwealth otherwise than as a member and in common with the other members of an incorporated company consisting of more than twenty-five persons:

shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.

But sub-section iv. does not apply to the office of any of the Queen s Ministers of State for the Commonwealth, or of any of the Queen s Ministers for a State, or to the receipt of pay, half pay, or a pension, by any person as an officer or member of the Queen s navy or army, or to the receipt of pay as an officer or member of the naval or military forces of the Commonwealth by any person whose services are not wholly employed by the Commonwealth.

Legal Disputes under Section 44

There are at least three ways the High Court (sitting either as the High Court, or as the Court of Disputed Returns under the Commonwealth Electoral Act 1918) might come to hear a case concerning the qualification or disqualification of a candidate for federal parliament. See Sarah O Brien, Dual citizenship, foreign allegiance and s. 44(i) of the Australian Constitution Background Papers, no. 29, Parliamentary Library, 1992. A case can be initiated by a candidate or voter, through a petition under the Commonwealth Electoral Act, disputing the result. Parliament can put a question before the High Court regarding the validity of someone s election. It is also possible that any person may seek enforcement of a penalty against a person who has taken a seat in the parliament in breach of the Constitution or electoral act. This right to sue is created by the Common Informers (Parliamentary Disqualifications) Act 1975. The first two of these approaches have both been used successfully in the last two decades