As long as the issue of Members of Parliament and their relationship with Section 44 of the Australian Constitution continues to bubble along in the background of Australian politics, there will continue to be questions about its fitness for purpose. If Section 44 is found to be unfit for purpose, then to change it will require a referendum and the normal rules of having a majority of votes in a majority of states will apply.
So then, let's ask the question. Is Section 44 fit for purpose?
In the 1890s when the Constitution was still being drawn up, I suspect that the idea of what citizenship actually was, was mostly different. When Australians, New Zealanders, Canadians, South Africans and Indians were asked nicely and then sent to Europe to fight in the protracted and bloody conflict which very quickly became known as The Great War, they were done so on the presumption that they were all British subjects. In fact, the idea that there even was a seperate Australian citizenship which wasn't even solidified at law until after the war to end all wars spawned another war and it happened all over again.
This means that we have to go back and look at what the framers of the Constitution were thinking.
The whole idea of the nation state kind came together after yet another round of European wars in 1848 and countries kind of coalesced together, on the basis of shared language and culture. Germany was still a bunch of independent states when they fought the French in 1870 but they'd more or less come together by the time that Franz Ferdinand decided to take a morning drive in Sarajevo.
By the 1890s we had a pretty good idea of who wasn't us, and if you'd said that a British subject from Toronto or Leeds had an allegiance to a foreign power when the Constitution Of Australia Act was passed in 1900, you might have found yourself in an asylum for the insane. The notion would have been incomprehensible to a British subject in relation to another British subject at the time of federation in 1901. Further to that, the idea that you needed a passport to travel from country to country wasn't a thing until after 1918. When Churchill said that "it is the God given right that an Englishman can live wherever the hell he likes", it kind of was almost a statement of fact.
Turn the wheel of history on for several decades and although the idea of what citizenship actually was, changed, the underlying sentiment which went into Section 44 did not. Although the framers of the Constitution might not have had the same notion of who constituted a citizen, they had a very strong notion of who was not one. That would have included other empires such as the French, German, the Austro-Hungarian, the Chinese, Japanese, Spanish, Mexican and what not. It would have also included the Americans who of their own accord and much fighting left the British Empire and would have also included Aboriginal peoples who although had been in Australia longer than everyone else, still did not have citizenship extended to them.
As the century rolled on and the idea of the nation state solidified, the idea of who was and who was not one of us also changed but Section 44 remained as an unmarked booby trap apparently. After the Second World War people started moving around the world with far more ease than they ever had before and in the case of Australia, the country practically threw its arms wide for a while, provided that they were someone who mostly looked like us (whatever the heck "us" is), until that we quite rightly seen as the racist policy it was.
That is the fundamental question which Section 44 tries to address. You don't want law which is made by "them" (whoever them is) and you want law which is made by us (whoever "us" is). The problem which Section 44 probably never ever thought of is, if the nation would eventually be composed of people from everywhere, that would put definite strains on what the definition of "us" is. Australia in 1900 was a nation composed of people who almost exclusively came from inside the British Empire and the subsequent laws which followed even went so far as to impose difficult barriers to entry of people from outside, from coming in. In 2017, where the nation is now composed of people who have come from everywhere, does such a limited definition of who is "us" make for something useful when it comes to making law?
It is important to remember that Section 44 of the Constitution does not put any limitations on people who hold dual citizenship from living in society. We haven't decided that on becoming an Australian, that all ties to foreign nations be severed. That requirement that legal ties be severed only comes into operation when someone wants to become a member of parliament and have a say in the law that affects everybody else.
This I think is the crux of the reasoning. The administration of power as vested in the parliament isn't merely in the hands of the 1% but the 0.001%. There are only 226 members of parliament and potentially any one of them could be the Prime Minister. I don't think it unreasonable that when you have the power of making law which can very much affect the lives of a great deal many people, that it is incumbent that you should have those people in mind. The people who make laws for all of us (whatever "us" happens to be) should be legally bound to be one of us and only us.
Section 44 also inadvertently acts as a barrier to incompetence. If a whole bunch of people end up getting removed from the parliament because they hold dual citizenship, I can't say that I feel particularly sorry for them. If you desire to be one of the 0.001% who makes laws on behalf of everyone else, then the very least that you should do is read the rule book which lays out how to make rules. If you want to run the excuse that you didn't know that you were a dual citizen, or more shockingly that you didn't know that this provision existed in the Constitution, then really shouldn't be a member of parliament. Section 44 imposes a responsibility test upon someone who desires a responsible position. It's not like Section 44 is something which is new, it's been there since 1900; before the nation of Australia was legally a thing. If you can't be bothered to read the Constitution, which just happens to be in the bookshop in the front foyer of Parliament House and costs a fiver, then you shouldn't be allowed to be on the floor of the chambers where you will be bound by it.
Do we need to prerogue parliament as has been suggested? I don't think so. If this ends up tumbling a lot of bumbling people out of the parliament, then so be it. There are rules to determine what happens with vacancies in both the House Of Representatives and the Senate; that may involve by-elections and if someone wants to re run for parliament, then maybe they aught to read the Constitution before they contest for the seat again. If there really is a problem with the existence of Section 44, then the Constitution itself details the procedure for changing the document; thus we end up where this piece started.
I don't think that Section 44 is a bad thing. The very notion of what citizenship actually is, is vastly different now to what it was in 1900, but the idea that a very few select group of people charged with the responsibility of making laws for us should be legally bound to us and only us, hasn't really changed at all. Section 44 should stay; especially if it means that those who shouldn't, shouldn't.