Had history played out differently, the constitution would have looked very different and the current saga might not have happened.
An earlier wording of Section 44 probably would have left Joyce in the clear — and Waters, and Ludlam, and Roberts
The current wording of Section 44 disqualifies anyone who:
But this was the wording debated in 1897, a few years prior to federation:… is under any acknowledgment 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 a citizen of a foreign power.
But the wording we ended up with is much wider, and appears to only look at whether someone is technically a dual citizen, irrespective of their personal actions. The change probably came at a debate in Melbourne in 1898, but we don't know why it was made. The result, the expert paper notes, "seems to confirm that [the updated wording] is intended to disqualify persons with dual citizenship regardless of whether they acquire their other citizenship voluntarily or involuntarily".… has done any act whereby he has become a subject or citizen or entitled to the rights or privileges of a subject or a citizen of a Foreign Power.
In other words, it could have been argued that the alternative wording only seemed to disqualify people who had made a positive step to acquire the citizenship of another country.
One of the people who helped put the constitution together wanted to throw a bone to dual nationals, but was shouted down
Sir John Hannah Gordon was a South Australian delegate to the Australasian Federal Convention that drafted the constitution. He wanted to add the words "or who has not since been naturalised" to Section 44.That would have allowed people to be elected if they had become British subjects.
But he was shut down by others who were there:
Patrick McMahon Glynn: "You cannot have two allegiances."
Sir Edmund Barton: "No; a man might have to go out of our parliament to serve against us."
Sir George Turner: "He may be minister of defence."
It was also suggested that parliament be given the power to change the disqualification tests. If this had been successful, Prime Minister Malcolm Turnbull could have just changed the rules surrounding dual citizenship, so long as he could get the votes he needed in the Senate.
But instead, the proposal was defeated 26 votes to 8 and didn't make it into the constitution, meaning any changes to Section 44 can only be made after a referendum.
http://www.abc.net.au/news/2017-08-17/d ... ss/8807534At the time the constitution was written, there were no Australian citizens. In fact, Australian citizenship wasn't created until 1949. Previously, Australians were "British subjects", as were Britons, Canadians and New Zealanders, so Mr Joyce (New Zealand), Mr Roberts (UK) and former Greens senators Scott Ludlam (New Zealand) and Larissa Waters (Canada) would have been unaffected by Section 44. (Though Mr Canavan's Italian citizenship would have still been a problem.)
It's unclear exactly when British subjects became subjects of a "foreign power" when it comes to Section 44. But the High Court has made clear that this is the case.