Section 44 of the Australian Constitution - clouded issues with a dash of moral bigotry

Chaos, confusion and the evolving Section 44 mess provides an update to this post. 

The theatre that is Australian politics continues. with a by-election underway in the Federal seat of New England and now a full state election in Queensland. This post concentrates on the issues surrounding the New England by election.

I first wrote on Section 44 of the Australian Constitution on 2 November 2016 in How far does Section 44 of the Australian constitution actually stretch?. This section reads:

 44. Disqualification
Any person who:
(i) 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; 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 subsection (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.

At the time my focus was on Senators Day (Section 44 (v)) and Cullerton (Section 44(ii), both of whom were disqualified. Those clauses haven't gone away (there are cases looming here), but it was section 44(i) that was about to bite the Australian Federal Parliament on a sensitive part of its anatomy.

The trigger here was WA barrister Dr Cameron who began investigating the citizenship position of various Parliamentarians.He established that Green Senator  Scott Ludlum was classed by New Zealand as a New Zealand citizen, something that Senator Ludlum was not aware of. Senator Ludlum then resigned from the Senate. Green Senator Larissa Waters then checked her own position, found that she technically had Canadian dual citizenship and then resigned from the Senate as well. This was a considerable loss to the Greens and indeed the Senate itself.

I wrote on this on 18 July 2017 in Senators Ludlum, Waters and the emerging Section 44(i) mess. There I said in part:

.The problem now can be simply put: something like 28% of the Australian population was born overseas, while almost 50% of the Australian population has one parent born overseas. Perhaps as many as 4.5 million Australians are or may be eligible for dual citizenship depending on the laws in the other country and hence not be eligible to stand for the Australian Parliament on a strict interpretation of the wording of Section 44(i)........ 

One of the arguments in the current debate is that people should renounce their alternative citizenships and that they have only themselves to blame if they have not done so. There are a number of problems with this argument. You have to know exactly what your position is. Further, you have to be able to do so in some meaningful way given the laws of the other country. This actually makes membership of the Australian Parliament dependent on other countries' changing laws, something of an absurdity.  

I also commented that a fair bit of point scoring from all sides had gone on around  the question of  Section 44 as they seek to use it for immediate political advantage. At a low level, this included Mr Turnbull's comment on Senator Ludlum:

 "Obviously Senator Ludlam's oversight is a pretty remarkable one when you think about it - he's been in the Senate for so long," Mr Turnbull said.  

"Anyway, there it is, he's ineligible, and so there'll have to be, I assume, a countback ordered by the High Court to produce a replacement for him."  .

Maybe that's fair, I wrote, but it ignores the way this issue has been developing and the implications it has for the operations of Parliament. Do we really want to place ourselves in the position that more than 25% of the Australian electorate may be excluded from running for Parliament?

These were throw away words that Prime Minister Turnbull would come to regret. Even as I was writing that post, Senior National Senator and Minister Matt Canavan discovered that he might be a dual Italian citizen, something I added in a postscript. Senator Canavan took leave from his ministerial position but did not resign from the Senate. Instead, the Government announced that it would test the matter in the High Court,.seeking to clarify the interpretation of Section 44(i).

This was quickly followed by the announcement that first National's Leader Barnaby Joyce and then Deputy Leader Fiona Nash, a Senator, might be dual citizens. This was a serious blow because three of the most senior National Party figures were now under a cloud. Acting on advice from the Solicitor-General, both Joyce and Nash chose to remain in Parliament and as ministers pending the High Court case.

Fall-out continued. Upon checking, Senator Nick Xenophon from the Nick Xenophon Team discovered that he had an obscure form of British citizenship. He stayed in Parliament pending High Court consideration, but later resigned his seat to re-enter South Australian politics. Meantime,One Nation Senator Malcolm Roberts came under increasing pressure over his citizenship status and was finally joined in the referral to the Australian High Court, making seven in all.

The Court handed down its decision on 27 October 2017 (decision here). The Court found that five (Ludlum, Waters, Roberts, Joyce and Nash) had been dual citizens at the time of nomination and had therefore not been validly elected, while two (Canavan and Xenophon) were classed as validly elected if on somewhat different grounds.

 While High Court proceedings were getting underway, I tried to tease some of the issues out in Why Barnaby Joyce may not be a dual citizen under Australian law (14 August 2017). The argument with marcellous in comments on that post extended the discussion. There marcellous stated issues that in fact were later reflected in the High Court decision. After the decision, marcellous wrote: "Jim. You were very stubborn on bJ. I'm going to say "I told you so."" I had to laugh. Touche!

In considering the Joyce case and indeed my own, my father was born in New Zealand, I struggled to see how either Mr Joyce or I could be classified as New Zealand dual nationals in circumstanced where we had actually to apply to become so. That still left the entitled problem, that we were entitled to become so by descent. I also struggled to see why the High Court was bound to accept the position that the question of whether a person was a dual citizen or not was to be determined by and only determined by the laws of another country as interpreted in that country. This seemed to me to open a can of worms.

As the case proceeded, it seemed clear that the case was going to be determined within the framework set by the previous High Court decisions since there was limited counterargument. The only question was whether the Court would relax elements of its previous position. In the end, the Court adopted a very literal black letter law position.

I will leave it to others to analyse the full legal implications of the decision. However, to me three things stood out bearing upon the wisdom of letting our interpretation of our constitution depend upon the laws of other countries.

The first was the way that national citizenship laws globally have been been in a state of flux over many decades, with consequent flow-on effects for Section 44)i).

The second was the difficulty that could arise in interpreting particular national laws. In the case of Senator Canavan, the Court could not determine whether in fact he was an Italian citizen based on the advice they received. He was given the benefit of doubt as a consequence,

The third linked issue was the meaning to be attached to the concept of citizenship itself. In the case of Senator Xenophon, the case turned on the question of whether his particular form of British citizenship was in fact citizenship at all set within the frame of current British law, Based on advice, the Court concluded (rightly to my mind) that he was not.

There appears very little appetite for changes to Section 44 in general or 44(i) in particular, with responses determined by immediate political needs as opposed to principles.I note here that while I am sympathetic to Mr Joyce, my position on the importance of the issue, of the potential need for change, was set well before I had any idea that the National Party would be caught up in furor. Most recently, I was especially sympathetic to Senator Waters' position. I thought that was a bit of a travesty,

Ironies abound. The Labor Party, a party that prides itself on its multicultural pluralist stance, is locked into a no change position because that offers the greatest immediate benefit even though it contradicts its stated values. The Coalition, and especially the Liberal Party that has been arguing for a tightening of Australian citizenship laws, now finds itself in a political bind. Even the Greens, another multicultural pluralist supporter, appear to be arguing for the status quo.    
 
There is a strange moral bigotry in all this, one that I find difficult to express really clearly  Satisfied it has procedures in place that will guard it from damage, the Labor Party has adopted a high moral ground purist position that focuses on compliance, not the underlying issues. It is also conflating issues that are not related.

Changing Section 44, Mr Shorten suggest, is a secondary issue to changing the Australian Constitution to achieve indigenous recognition. That may be right, but the two issues are not connected. I agree that indigenous recognition is very important, but it has nothing to do with Section 44. Linking them clouds discussion on both. But does that matter when you are trying to achieve the moral high ground?

Postscript

In breaking news, Senate President Stephen Parry (Liberal, Tasmania) has advised the Senate that he may be a British dual citizen. His UK born father came to Australia as a child.He has asked for clarification from UK authorities. There is something a little demeaning in Australia's politicians having to rush to another country to try to establish their citizenship status.

One discomforting thing about the Parry case (sample coverage here, here, here) is that he did not seek to clarify his position, but instead waited for the High Court decision before acting.