Under Section 44 of the Australian Constitution there is every chance that Sam Dastyari is inelegible to sit as a senator.
Section 44 says:
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.
The key provision is 44 (i).
It has been held under this provision (see Sue v Hill) that someone who is a dual national, even though one of the nationalities is Australian, and the other is that of our closest foreign relative, the UK, is ineligible to be a senator. In that case One Nation senator Heather Hill was forced out by the High Court because she was both a UK and Australian citizen.
It did not matter that the relationship between Australia and the UK is as tight as it is.
The three key words with respect to Datyari are “allegiance”, “obedience” and “adherence”. He is obviously not a Chinese citizen, but the taking of money from the Chinese government, combined with his position on Chinese affairs, and the expectations of his donor that gifts will procure policy favours, gives rise to a rebuttable presumption that he is in either “obedience” or “adherence”.
A line like this was run in Nile v Wood in which the plaintiff was unsuccessful. However,analysis by John Kalakerinos, and published by the Department of the Senate, suggests that this would not necessarily mean a case against Dastyari would fail.
Nile v Wood18 (an action arising out of the 1987 election) was another attempt to rely on s 44(i). Elaine Nile brought a wide-ranging petition objecting to the declaration of Robert Wood of the Nuclear Disarmament Party as a senator for NSW, alleging breaches of paragraphs (i), (ii), and (iii) of s 44.19 On the ground relating to s 44(i), the petitioner alleged that Wood’s actions against the naval vessels of a friendly nation indicated allegiance, obedience or adherence to a foreign power.20
Sitting as the Court of Disputed Returns, Brennan, Deane and Toohey JJ held that the petition had set out insufficient facts to establish any acknowledgment of allegiance, obedience or adherence to a foreign power, failing even to identify the relevant foreign power. Speaking obiter, their Honours made the following comment about the first limb:
It would seem that s 44(i) relates only to a person who has formally or informally acknowledged allegiance, obedience or adherence to a foreign power and who has not withdrawn or revoked that acknowledgment.21
From Nile, then, certain requirements are necessary to enliven the first limb of s 44(i). First, a relevant foreign power must be identified. Secondly, there must be a formal or informal acknowledgment of allegiance, obedience, or adherence by the individual in question. Thirdly, the acknowledgment must not have been withdrawn or revoked.
Although the question of the application of the first limb did not arise for consideration before the full bench in Cleary,22 in his dissenting judgment, Deane J nevertheless commented that it ‘involves an element of acceptance or at least acquiescence on the part of the relevant person’.23
Although subsequent cases have not overturned the Nile test, linguistic and conceptual ambiguities make its application uncertain in the contemporary Australian context. What of the many Australians who possess strong links to former homelands or to the homelands of their ancestors? Does s 44(i) apply to Australian citizens who take an active interest in the affairs of foreign nations? In both of these situations the affections—although informal—may be strong, regardless of the possession of foreign citizenship, and may or may not be covered by s 44(i).
The ambiguities surrounding the first limb of s 44(i) have led to differing opinions as to the types of situations and conduct that would fall within it. Lumb and Moens, and Burmester,24 are of the opinion that the acceptance of a foreign award or honour would be insufficient to establish allegiance to a foreign power.25 Lumb and Moens assert that acting as honorary consul for a foreign power would also not be a ground for disqualification under s 44(i).26 Formal acknowledgment of allegiance is probably established by the acceptance of a foreign passport.27 Acts contrary to Australia’s national security interests, for example providing comfort to, raising funds for, or assisting with the military operations of countries or causes unfriendly to Australia, would be likely to constitute an acknowledgment of adherence, and thus contravene s 44(i). Serving in foreign armed forces has been cited as conduct that would constitute formal allegiance.28 However, where military service is imposed compulsorily upon individuals, without any formal or informal acknowledgment, I submit that it would not necessarily constitute an acknowledgment of allegiance, but such a situation has yet to arise in court.29
Further, s 44(i) provides ineffective protection from contemporary forms of foreign influence. For example, it probably does not shield the Parliament from insidious ‘foreign commercial interests’, such as donations to political parties from foreign corporations or individuals.30
The critical part of Kalakerinos’ analysis is “providing comfort to, raising funds for, or assisting with the military operations of countries or causes unfriendly to Australia, would be likely to constitute an acknowledgment of adherence, and thus contravene s 44(i)”.
It is beyond belief that the ALP is so corrupt that partisans like Graham Richardson are already looking towards the re-elevation of Dastyari. What he has done disqualifies him from representing Australia and ought to see him resigning himself from the Senate to avoid any further embarrassment.
This is a matter that the Senate itself should resolve to litigate. If it doesn’t, then a civic-minded citizen should take it on themselves.
At this serious juncture in our national history where south Asia is rearming there should be no tolerance of behaviour which betrays the national interest, certainly not from our elected representatives.