November 18th 2017

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Articles from this issue:

COVER STORY Full audit can end dual-citizenship fiasco

CANBERRA OBSERVED High Court high handed to 'foreigners' in Parliament

MANUFACTURING Auto industry loss result of government policy failure

AGENDA FOR AUSTRALIA Financing infrastructure for development and jobs

FOREIGN AFFAIRS Behind the indictments of ex-Trump campaigners

AUSTRALIAN HISTORY Beersheba charge enabled a pivotal victory

ECONOMICS China intends to party like it's 1949 ... again

ENVIRONMENT Core of climate science is in the real-world data

U.S. HISTORY Why Americans stick to their guns

MUSIC New styles: Dipping into the melting pot

CINEMA Loving Vincent: A mystery in oils

BOOK REVIEW Just what is the conservative idea?


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High Court high handed to 'foreigners' in Parliament

by NW Contributor

News Weekly, November 18, 2017

For Malcolm Turnbull, the most prominent Republican in Federal Parliament, the High Court’s recent decision on citizenship has become an albatross around his neck.

It would have been far preferable for Mr Turnbull had the High Court adopted a more traditionalist interpretation of what constitutes the concepts of loyalty and allegiance to Australia and to the personage who wears the crown under which the Australian Parliament (currently) sits.

The reality of the High Court attempt to “clear the air” on the question of citizenship for MPs is that it did no such thing, as every member of Parliament works to triple check their parentage and possible links to foreign countries. The Prime Minister is for now ruling out an independent audit, arguing that it would solve nothing and that any finding of a possible breach would still have to be sent to the High Court, sitting as the Court of Disputed Returns.

The High Court adopted a strictly black letter interpretation of section 44(i) of the Constitution when it decided on the fate of six senators and one Member of the House of Representatives. It found that five of were “a subject or a citizen of a foreign power” even though several were born here.

It will take some time to find out whether any more MPs have been inadvertently caught in the dual-citizenship web.

It is worth noting that some of Australia’s past prime ministers would likely have failed the citizenship test that the High Court now insists on.

There have been 1,767 members and senators in Federal Parliament since Federation. How many were either born overseas, held dual citizenship or had foreign-born parents or grandparents who potentially bequeathed them rights as citizens from overseas?

The first dozen prime ministers had parents who were born overseas, or were themselves born overseas, including the first Labor Prime Minister, Chris Watson, who was born in Chile but was of German-British heritage.

Upon becoming Prime Minister, Watson wrote that as a child, he “removed with his British parents from South America to New Zealand”, which, if correct, would have duly classified him as a subject of the Queen.

Back then there was no formal legal concept of an “Australian citizen” and no distinction made for elected MPs who were part of the British Empire. In other words, if you were a British subject, an Australian, a Canadian or a New Zealander, you were considered a loyal British subject and eligible to stand.

Three important acts of Parliament changed this: the Nationality and Citizenship Act of 1948, which specified that Australians were both British subjects and Australian citizens; the 1984 Australian Citizenship Amendment Act, which repealed the definition of British subject and required members and senators to also be “Australian citizens”.

In effect, British people in Australia were thus no longer “Australians” and had to apply for Australian citizenship along with other “aliens”.

Finally, the Australia Act of 1986 deleted the requirement for new citizens to renounce their allegiances.

In the 1999 case of Sue v Hill, the High Court found that from 1986 Britain was a foreign power for the purposes of section 44(i) of the Constitution.

In 1992’s Sykes v Cleary, the High Court found that an elected representative would be eligible to sit in Parliament provided they took “all reasonable steps” to renounce their foreign nationality.

But what if you were still eligible for citizenship of another country through a parent or grandparent, but you didn’t know it? In a seven-nil judgement the High Court found that ignorance of dual citizenship would not be an excuse, which meant that the pleas from Barnaby Joyce, Malcolm Roberts and Fiona Nash, did not cut it.

Speaking as one, the Justices said: “It may be said that it is harsh to apply section 44(i) to disqualify a candidate born in Australia who has never had occasion to consider himself or herself as other than an Australian citizen and exclusively an Australian citizen.”

The High Court has also stressed the need for all candidates to take their decision to run for Parliament as a manifestly serious decision, and to do their homework before ticking the box to say they are not breaching the nation’s founding document.

The problem is that the founding document was based first and foremost on loyalty and allegiance to the British Empire and the new nation of Australia, not a bureaucratic citizenship test, which has evolved over time.

The High Court may have solved the issue for future Parliaments but, for the current one, it has created an ongoing nightmare.

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