The Section 44 imbroglio - fight over the 28 July by-election dates

The imbroglio over citizenship and Section 44 of the Australian Constitution is a gift that keeps on giving.

The announcement that the by-elections for the five vacant House of Representatives seats would be held on 28 July has created something of a political storm (here, here for example) because this date coincides with the ALP national conference. This date was recommended by  the Australian Electoral Commission in part because the new requirements to provide detailed citizenship and family genealogical information would disadvantage independent candidates and those from the minor parties compared to the major parties.

The date seemed to blindside Labor. The Government was fairly sniffy about this on the grounds that the problem - the resignations - was one of Labor's own making, thus continuing the relative blame game between parties over the whole matter. I do think, however, that Tony Smith as Speaker of the House of Representatives should have provided Labor with the courtesy of consultation before the announcement of the date.  

Sunday Essay - can we change Section 44 of the Australian Constitution?

While I have been preoccupied, Section 44(i) of the Australian Constitution has continued to claim more parliamentary victims. On 9 May 2018, the High Court ruled that Labor Senator Katy Gallagher had not been eligible to stand for election because she had not completed the renunciation process for her British citizenship before she was elected. As a consequence, three Labor MPs (Susan Lamb, Justine Keay and Josh Wilson) and one Centre Alliance MP Rebekha Sharkie who were in a similar position all resigned the Australian Parliament triggering a super Saturday round of by-elections.

I have lost contact with just how many actual or prospective Members of Parliament have been felled over the last twelve months as a consequence of Section 44 challenges..Is it 19 now?

In a piece in The Conversation,  constitutional laywer Professor Anne Twomey"s Dual citizenship debacle claims five more MPs – and sounds a stern warning for future parliamentarians looks at some of the issues arising from the High Court's black letter interpretation of Section 44(1). Another constitutional lawyer, Professor Jeremy Gans, looks at related aspects in another piece in Inside Story, Anne Aly and the insurmountable obstacle.The message is captured in the sub-heading: "The High Court has set a new citizenship test for parliamentarians of uncertain status, but who on earth could pass it?" Certainly it is far from clear to me on the evidence so far presented that Ms Aly would actually meet the High Court test.

Since the current controversy began, many extraneous issues have been dragged in. An example is this rather fatuous piece by Waleed Ally, Why are all our dual citizens white? which really has nothing to do with Section 44 but is an expression of Mr Aly's own perceptions of the world. Perhaps Scott Stephens, his co-host on the ABC Minefield program,  might subject Mr Aly's view to forensic analysis?

My own ideas on this whole issue have been set out in various posts. For the record, I have listed the posts below so that people can follow the story through to some degree. In this post I simply want to comment on a few issues.

Core Problem

In July last year in a post on the sudden resignation of Green Senators Senators Ludlum and Waters I wrote:

The Constitution was passed as an Act of the British Parliament in 1900. This was a very different world, one of Empire and emerging Commonwealth. As you can see from the Wikipedia article on Australian nationality law, concepts of citizenship have evolved, as has the definition of a foreign power. In 1900, it would have been seen as inconceivable that Canada or New Zealand could or would be classified as foreign powers for the purpose of Section 44(i) as compared to, say, the United States or Germany. When Canberra founder King O'Malley, for example, wanted to run for Parliament, he appears to have changed his birthplace from the US to Canada so that he was not precluded by Section 44(i). 

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).

I regarded this as a bad thing. I still do. Those who were affected by this first round were predominantly, not all, the children or grandchildren of those who came to Australia in the first big round of immigration after the war. Those who will be more affected in the future are the children and grandchildren of recent migrants, a very different wave. We talk about the need for diversity in the Federal Parliament, but we have a constitutional provision as now interpreted that will act as a barrier to some degree to just the diversity we seek.

This view is shared by many others. To quote former High Court Justice Michael Kirby's reported views

London: Former High Court justice Michael Kirby says the constitution should be changed to allow dual citizens to run for federal parliament because "dis-entitling" them undermines Australia's success as a multicultural nation. 

Mr Kirby said Australia's prohibition - which has seen 10 MPs disqualified since the 2016 election - was detrimental given Australia's rich immigrant culture. 

"Unless there is some other interpretive way to solve the problem then I think it should be changed because Australia really has been successful as a multicultural society and that is challenged by this approach to disentitle a very large number of members of the Australian community being elected to the national parliament. That's not a good thing," he said.

It's the law - get over it

Reading the comment streams on various articles, a common theme is "it's the law - get over it". This view suffers from certain weaknesses.

To begin with, it ignores the way that this matter has evolved. Other interpretations of the constitution were possible. It ignores, too, the way in which the High Court acts in these matters on referral from the Parliament, sitting as the Court of Disputed Returns. On the surface, the Parliament could have chosen not to refer. However, as more referrals were made further referrals became inevitable. Even then some referrals were not made even though they might have been, given that the High Court is the only body that can finally and formally rule on eligibility.

The common argument ignores, too, the costs and difficulties involved where eligibility to sit in the Australian Parliament is made dependent upon changing citizenship requirements in other countries that can only be interpreted in regard to the laws of those countries.

In the case of Green Senator Waters who was born in Canada to Australian parents who were studying there, had she been born just one week later she would not have been eligible for Canadian citizenship because of another change to Canadian law. Labor MP Sam Dastyari was born in Iran and came to Australia when he was four. It cost him a reported $25,000 in legal fees to try to clarify his citizenship position.

Countries appear and disappear. Regimes change. As these changes occur., citizenship laws change. People are citizens on day, may be not another,  may become citizens again later. Membership of the Australian Parliament is made dependent not on Australian law, but on the vagaries of other countries laws.and the interpretations place upon them.

Confusions over allegiance. 

It seems clear from comment streams that people are confused. Surely, they suggest, it is only reasonable that Australian parliamentarians should only possess Australian citizenship?  This one is more complicated.

The original provision in the constitution was introduced at a time of great power rivalry between the British empire and other imperial powers including the US and Germany. While the provision was never subject to serious discussion, the intent was imperial protection. The idea that the provision might be used to exclude people from New Zealand, the UK or Canada from the Federal Parliament, the idea of multiple citizenships or even citizenship itself, was outside the ken of those involved.

The world has changed since then, in fact many times. It's not all that long ago that Australia did not recognise dual citizenship.If I had got a British passport as was then possible, it would have created a difficulty for my Australian citizenship.

So there are some issues here that have to be thought through. But surely nobody would argue that just because Sam Dastyari was born in Iran, Larissa Water in Canada, that this would in any way affect their primary allegiance to this country?

Failures of political leadership

This whole mess reflects a failure in political leadership. When some time ago it was suggested that this was a problem that needed to be addressed, their was no willingness to do so. When the two Green Senators became involved, the Prime Minister was dismissive.

 "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."  .

Then when  the Liberal and National Parties got caught up, Opposition Leader Shorten was somewhat gleeful on the grounds that Labor's processes meant that that Party was protected. That hubris brought its own rewards as measured by the latest resignations. The hole thing would be quite funny if it were not so problematic.

Now that all parties have been so badly stung, is it too much to hope that we can actually have a conversation on what changes might be made to the Constitution?

Previous Posts

2 November, 2016 How far does Section 44 of the Australian constitution actually stretch?
Tuesday, July 18, 2017 Senators Ludlum, Waters and the emerging Section 44(i) mess
Monday, August 14, 2017 Why Barnaby Joyce may not be a dual citizen under Australian law
Monday, October 30, 2017, Section 44 of the Australian Constitution - clouded issues with a dash of moral bigotry
Friday, November 10, 2017, Chaos, confusion and the evolving Section 44 mess

Chaos, confusion and the evolving Section 44 mess

In his post today (10 November 2017 Weird things happening in Oz), Neil Whitfield referred (among other things) the mess that had arisen in the context of Section 44(i) of the Australian constitution. He also pointed readers to the updates I had being doing on an earlier post of mine, Section 44 of the Australian Constitution - clouded issues with a dash of moral bigotry. I had actually stopped updating because the whole thing had become just so chaotic, messy and downright confusing. 

I will provide a brief update in this post. But first, this is Section 44 of the Australian constitution dealing with ineligibility for election to the Australian parliament. I have given the section in full because other parts are now in play as well.

 Australian Constitution – Section 44 – Disqualification 

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 & privileges of a subject or citizen of a foreign power: or
(ii.) Is attained 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 sub-section 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 of my 30 October post, the High Court had just ruled (27 October) that:

• four members of the Senate (Ludlum Greens, Waters Greens, Roberts One Nation and Nash National Party) had been dual citizens at the time of nomination and had therefore not been validly elected
• one member of the House, Nationals Leader and Member for New England Barnaby Joyce, had also been a dual citizen and therefore not eligible for election
• that two senators (Canavan, Nationals) and Xenophon NXT) were classed as validly elected if on somewhat different grounds. Mr Xenophon subsequently announced his intention to resign from the Senate. His position will be taken by a Green nominee formally appointed by the South Australian Parliament.  

In ruling, the High Court unanimously adopted a narrow literal interpretation of the wording of Section 44(i) raising the possibility that other members would be affected too.

Even as I was writing, it emerged that Senator Parry (Liberal Tasmania and President of the Senate) was seeking clarification as to whether he was a dual British citizen. He subsequently resigned from the Senate following advice that he was a British citizen by descent. Technically, he could not resign since he had not been validly elected.

Following Senator Parry, the Liberal member for Bennelong revealed that he had contacted British authorities to inquire urgently whether he too was a UK citizen by descent. The former tennis champion's father, Gilbert Alexander, migrated to Australia in 1911. Mr Alexander was born in 1951, two years after the creation of Australian citizenship in 1949.

This was followed by suggestions in the Australian newspaper that, Josh Frydenberg, the Liberal member for Kooyong, might be entitled to Hungarian citizenship through his mother. This infuriated Mr Frydenberg and many others because his mother came to Australia as a stateless person following the end of the war. The issues here are complex, but would appear to centre on the question as to whether subsequent alterations to Hungarian law to restore forfeited might have created an entitlement to apply.for Hungarian citizenship.

By now,  everybody was trawling through official records to try to determine whether a person might have some foreign citizenship or entitlement to that citizenship under the laws of other countries or, alternatively, whether the way that citizenship had been renounced might fail to comply with the High Court's rulings on the matter. The ABC has something of a list. All parties are affected, although the Labor Party's more rigorous processes provide it with a degree of protection.

The matter is fiendishly complicated because it involves foreign citizenship laws, while only the High Court has the power to determine whether someone is eligible or not. At this point it seems quite possible that more members will be caught up.

Should the Court determine that a member was not eligible to run and consequently declare the position vacant, then it has to be filled. In the lower house, this requires a new election for the vacant seat.  

Following the High Court decision, a by-election was announced for the seat of New England. The National Party renominated Barnaby Joyce since he was now eligible to run following his formal renunciation of any claims to New Zealand citizenship.Should John Alexander or any other member of the House of Representatives be found to have breached the constitution then further elections will need to be held.

The process in the Senate is different. In this case, the Court has ruled that a recount of the votes at the previous election must occur with the now ineligible Senator excluded. There are some complexities here, but this would normally result in the election of the next person down on the Party's Senate ticket. In the case of the National's Senator Nash, that meant Hollie Hughes, a Liberal because there was a joint Liberal/Nationals Senate ticket in NSW.

Today's High Court decision confirmed three of the four people to fill the first vacancies.However, the question of Hollie Hughes's eligibility was referred for decision to the full High Court. The problem was that following the election she took a Government position. Had she therefore breached Section 44(iv), holding an office of profit under the Crown? I would have thought not. She was eligible in the first place and could not have known that this position would arise. She also resigned the position as soon as the Nash problem became clear. However, I am not a lawyer and have been wrong on this one before.

The High Court now has to decide the case of Senator Parry and any other present Senators that may be caught up in the whole thing. There are also other actual or potential cases coming up involving other parts of Section 44 including the case of David Gillespie.  

None of the political parties have handled this evolving mess especially well. The problem of the meaning of Section 44(i) was identified some time ago, but it was either seen as not important enough or too hard to handle. As it broke, the party political responses tended to be short term reactive, seeking to contain or take advantage of the immediate situation. Few foresaw the scale of the problem even though it was foreseeable. The possibility that the High Court might adopt a literal almost black letter interpretation of the constitution was not sufficiently recognised, nor were the widespread ramifications that might follow such an interpretation.

The major parties will ultimately agree a process for handling the short term issue, leaving the broader issue of possible changes to the constitution to a later time. Meantime, Australians and indeed the rest of the world look in bemusement at this uniquely Australian constitutional crisis.

Postscript

I said that I was not a lawyer. Interesting post from Boilermaker Bill, Can Hollie Hughes Get Past the High Court’s “Brutal Literalism”?, that sets out why the High Court might rule against Hollie Hughes despite common sense saying the opposite. .

Postscript 2 Update 12.50 11 November

As I write, John Alexander is resigning as an MP, meaning another by-election. The Liberal Party has also obtained advice from former Solicitor-General David Bennett, QC suggesting that Labor's Justine Keay and Susan Lamb and NXT MP Rebekha Sharkie may all be in breach of section 44 (i) of the constitution because they failed to complete renunciation of potential foreign citizenship by the date nominations closed. There are also claims chief government whip Nola Marino may have acquired Italian citizenship through marriage.

Am I alone in thinking that it is time for everybody to stop digging into everybody else's family histories and let Parliament agree a process for managing what has become a god-awful mess?

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.   
 

Senators Ludlum, Waters and the emerging Section 44(i) mess

The sudden resignation from the Australia Senate of first Scott Ludlum and then Larissa Waters has further opened a constitutional can of worms. The two were joint deputy leaders of the Australian Greens in the Federal Parliament, both were young seasoned performers with considerable promise. Their resignations came about because they were found to be dual citizens and thus precluded from membership of the Australian Parliament under Section 44(i) of the Australian Constitution.

Born in New Zealand in 1970, Senator Ludlum came to Australia with his family when he was three. He became a naturalised Australian citizen in his teens and assumed that his New Zealand citizenship had lapsed as a consequence. It was Perth barrister Dr John Cameron who investigated New Zealand official records who found that Mr Ludlum was also still officially classified in New Zealand as a New Zealand citizen.

Born in Canada in 1977 to Australian parents, Larissa Waters came to Australia as a baby. When she found out about Sentaor Ludlum's status, she checked her own position only to find out that she, too, was technically a dual citizen and hence not eligible to serve in the Senate. She resigned as a consequence.

Section 44(i) of the Australian Constitution reads:

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:
....................
shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.

The Constitution was passed as an Act of the British Parliament in 1900. This was a very different world, one of Empire and emerging Commonwealth. As you can see from the Wikipedia article on Australian nationality law, concepts of citizenship have evolved, as has the definition of a foreign power. In 1900, it would have been seen as inconceivable that Canada or New Zealand could or would be classified as foreign powers for the purpose of Section 44(i) as compared to, say, the United States or Germany. When Canberra founder King O'Malley, for example, wanted to run for Parliament, he appears to have changed his birthplace from the US to Canada so that he was not precluded by Section 44(i).

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).
.
Consider my own case as someone who has run for preselection for Federal Parliament. At the time I ran, I was eligible to apply for both British and New Zealand passports, to become a citizen of those countries. Indeed, my family later pushed me to apply for a British passport while I still could because of then EU access. Was I therefore ineligible to stand for Parliament?
    
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.

To take an extreme case, say the Irish Parliament changed its laws so that every person of Irish ancestry had an automatic right to apply for and be awarded Irish citizenship. On a strict reading of 44(i), that could immediately disqualify many of our current Parliamentarians. Perhaps a more relevant example is Israel's Law of Return that gives Jewish people an automatic right to Israeli citizenship. Are we therefore to exclude all Jews from the Australian Parliament?

A fair bit of point scoring from all sides has gone on around  the question of  Section 44 as they seek to use it for immediate political advantage. At a low level, this includes 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, 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?

In the end, it comes back to the High Court and the way it might interpret Section 44(i) in the light of current events. Perhaps Dr Cameron as a concerned citizen who has already brought down two Senators might consider doing a Bryan Pape and taking a citizen's case to the High Court. I, for one, would like to know just how that clause might be interpreted so that we know who is actually eligible to run.  

Postscript later on 18 July

Interesting piece by Amy Remeikis and Eryk Bagshawin the Brisbane Times: Greens senator Larissa Waters resignation triggers wave of MPs declaring Australian allegiance. Settled one issue to begin with. Tony Abbott renounced his British citizenship before entering Parliament. On Ms Waters:

Senator Waters, who was born to Australian parents studying in Winnipeg, said she had been assured as a teenager that she needed to "opt-in" for Canadian citizenship by her 21st birthday, an option she declined after not visiting the country since she was 11 months old. 

But her lawyers this week revealed that while Canada had changed its citizenship laws to the opt-in model in 1977, the year Senator Waters was born, it did not take effect until the week after her birth and she was automatically a citizen. 

An update too on ABC, including information that it cost Senator Sam Dastyari $25,000 giving up his Iranian citizenship cost $25,000 and involved two teams of lawyers — one from Australia and one in Iran.

It all remains a bit of a mess.

Postscript still later 18 July

I had not seen this High Court Decision that bears upon the application of Section 44. Recorded for later reference.

Update 26 July 2017

Section 44(i) of the Australian Constitution continues to create problems with the resignation (and here, here, here, here) from the ministry of National Party Senator Matt Canavan.

Senator Canavan was born in Australia and has never been to Italy. However, it appears that Senator Canavan's mother included him in her 2006 application to become an Italian citizen, making him a dual citizen without his knowledge. Senator Canavan has not resigned from the Senate at this point. Instead, the Government will test the matter in the High Court,.seeking to clarify the interpretation of Section 44(i).

For those who are interested, there is quite an interesting discussion on the Melbourne Law School High Court Blog that draws out some of the issues associated with Section 44.

Implications of the UK High Court's Brexit decision

I will bring an analysis up later. In the meantime, this link will take you to the text of the UK High Court decision on the Brexit appeal. It's important in constitutional terms with implications for all Westminster countries. While I am thinking, I would be interested in your comments.

How far does Section 44 of the Australian constitution actually stretch?

Being a senior politician appears to be an aging experience. The photos that are chosen probably don't help. Recent photographs of Australian Prime Minister Turnbull made me check his age. He is just 62. Its not only Mr Turnbull, of course. The frenetic pace now demanded ages all but the most durable.

The latest troubles involving Section 44 of the Australian constitution have not made Mr Turnbull's life any easier. The decision to ask the High Court sitting as the Court of Disputed returns to rule first on the eligibility of former Senator Bob Day (Family First) and then Senator Rod Culleton (One Nation) to have even run for election at the last election has thrown the Senate (and the Government's legislative plans) into a degree of disarray. A challenge to Senator Cullerton was already in-train, but the Government now wishes to become a party to the challenge.

Section 44 of the Australian Constitution 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.

Section 44 needs to be read in conjunction with Section 45.

45. Vacancy on happening of disqualification
If a senator or member of the House of Representatives:
(i) becomes subject to any of the disabilities mentioned in the last preceding section; or
(ii) takes the benefit, whether by assignment, composition, or otherwise, of any law relating to bankrupt or insolvent debtors; or
(iii) directly or indirectly takes or agrees to take any fee or honorarium for services rendered to the Commonwealth, or for services rendered in the Parliament to any person or State;
his place shall thereupon become vacant.

We have come across Section 44 (i) before in the context of the dispute over dual British/Australian citizenship, including the question of Mr Abbott's citizenship. It would have been inconceivable to the original drafters of the constitution that some one from the UK or indeed any of the dominions could or would have been classified as a citizen of a foreign power. Indeed, that was the case, I think, until the 1970s when attitudes changed.

Former Senator Day's case involves Section 44 (v). The constitutional question to be decided is whether the arrangements in regard to Senator Day's office constitute an indirect pecuniary interest for the purposes of 44(v) that made him ineligible to run for election last time. In the case of Senator Culleton, the question is whether his conviction in absentia at Armidale (the conviction was subsequently quashed) precluded his election under 44(ii).

There are lots of political atmospherics around all this. Put those aside and consider the wording of Section 44. What a mess. For example, does subsection (iv) mean that a person in receipt of an old age or disability support pension is ineligible to run for the Commonwealth Parliament? The exemption applied to (iv) in the last clause is limited to Ministers. Ordinary MPs are paid. Do they hold an office of profit under the Crown? I would have thought not, because they don't represent the Crown as such, but I don't know.

All members of Parliament are in receipt of allowances paid by Finance. Does this constitute a beach of (v)? If so, when? More broadly, how far does "agreement with the Public Service of the Commonwealth" stretch?

Finally, on 44(ii), there has been such a proliferation of criminal offences at State and Federal levels where the potential sentence is greater than a year that a remarkable number of people may be precluded from running for office.

No doubt the High Court will read the scope more narrowly than some of the questions I pose, but 44 is still a very messy section.

Postscript

Piece by Professor Anne Twomey on The Conversation, Explainer: what is the challenge to Bob Day’s Senate seat all about? It includes a link through to the earlier decision on the Webster case..That, I think, is the strangest decision I have read!
.

Living in a post-modern government world

I was going to add this material as a footnote to Monday Forum - reforming the Australian Federation but decided instead to bring it up as a new post.

I have been working my through the first Reform of the Federation issues paper, A Federation for Our Future. Perhaps it's because I'm tired, but it is a most eye-glazing document, a sort of post modern government period piece.

Is that fair? I said I was tired. But consider this. It takes the existing constitution as a given. It's dominated by questions of economics and economic efficiency, focusing on questions of service delivery. It confuses issues, throwing in constraints on spend and what Governments can do. As a consequence of all these things, the immediate debate generated is on the GST.

Can the existing Federal system be made to work more better? Of course it can. To ask how to do that is a fair question. However, the discussion paper points to the central problem here. All the discussion on this topic and the various initiatives that have been proposed such as cooperative federalism fail because the Commonwealth controls and the states respond.

The Abbott Government is no different here. If you look at it's track record, it is much into control, some would say more so, than its predecessors. To the degree that the problem lies with the Commonwealth, then the solution rests with the Commonwealth. It can change its behaviour.

On the state side, the states can control their responses. All a state has to do is to say we are not going to accept this level of control. We will go without. We will plot our own course.

The paper is quite good at charting the political dynamics that make either path difficult. It doesn't offer real solutions.

In his responses to the discussion, Mr Abbott has said that he is now a pragmatist on the Federation. By this, he means simply that he no longer has a philosophical position at other than the most generalist level. Perhaps I am misquoting him. I stand to be corrected.

It is worthwhile having a conversation on the Australian Federation. Our system has actually proved reasonably flexible, but it can be improved. A conversation dominated by posturing around the GST is not, actually, a conversation. Everybody is trading set pieces, set positions. That is boring and not especially useful. So let us actually talk.        

Monday Forum - reforming the Australian Federation

On 12 September 2014, Australian Prime Minister Abbott released the first issues paper addressing the future of the Australian Federation. On 25 October, the PM delivered a speech in Tenterfield on his vision of the Federation. I wonder whether it will have the same impact as Sir Henry Parkes' famous speech?

I have written a fair bit on constitutional issues. Rather than repeating those views, I thought that I would ask you. How would you restructure the Australian Federation? How would you make our system work better? Is it in fact possible?

Postscript

The first comments received focused on the GST. Anons one and two focused on the political aspects of the GST. Winton Bates wrote

I think the starting point should be to establish an allocation of GST as close as possible to what it would be if it was a state tax. That would make fiscal equalisation a separate issue and help state premiers to consider whether the base of GST should be broadened, rate raised, more reliance placed on property taxes, spending reduced etc.

I am inclined to agree with Winton.

Postscript 2

The debate really does seem to be bogged down at present on GST.

Postscript 3 

Ross Gittin's take: GST out of the box, but states won't budge

The principle of Cabinet confidentiality

The principle of cabinet confidentiality is deeply engrained in the Westminster system. The traditional British form was once explained to me in this way by a then boss at Treasury. The papers of a Government belong to that Government and cannot be made available to a new Government, This principle provided the base for a very funny episode of Yes Minister in which Jim Hacker conspired with his predecessor in the previous government to force Sir Humphrey as head of Department to reveal not the papers, but the principles embedded in a paper prepared for the previous minister.

Leaving aside the constitutional principles underlying the approach, there are good, practical, reasons for the confidentiality requirement. If an incoming government can trawl through the papers of its predecessors, it will always find things that it can use in the political fight. Then, once it has established that this is okay, it will be exposed in its turn.

The apparent decision by the Commonwealth Attorney General George Brandis to release cabinet papers from the previous administration to the Royal Commission into the abandoned home insulation scheme is without precedent. It is also unnecessary.  The Commission does not need those papers to do its job. It can find out all it needs just by asking people under oath, by seeking other documents.  

Former prime ministers Bob Hawke and Malcolm Fraser have expressed alarm at the Brandis move, saying it will invite payback from future governments and threaten cabinet confidentiality. They are right to be alarmed.

In releasing the documents:

Senator Brandis said the government respected the importance of cabinet confidentiality, but it had decided the documents the Commonwealth would produce for the commission ''will include documents over which a claim for public interest immunity might be made, such as cabinet documents''.

In providing such documents to the commission, Senator Brandis said the government would indicate that it did not waive its right to claim public interest immunity from their contents becoming public.

''Accordingly, should the commission wish to publish any of the cabinet documents … the Commonwealth requests that it be notified so that it can consider whether it is necessary to make submissions in relation to such documents or uses, or whether it should seek protective orders,''

This is actually  a rather important statement. Senator Brandis is establishing a new principle. Cabinet documents can be made available, but the Government reserves the right to oppose publication. However, it is then a matter for the Commission or courts to decide.

Meantime, lawyers representing former prime ministers Kevin Rudd and Julia Gillard and several former cabinet ministers who have been summoned to appear before the commission are believed to be considering legal action that would see the courts decide if cabinet confidentiality should be waived in the public interest.

The principle of cabinet confidentiality is just that, a principle. It exists because, in combination with other things, it makes our system work. I think it unlikely that this Royal Commission will choose to publish cabinet documents, although they may wish to publish excerpts to set a context. That doesn't matter. The new principle has apparently been established.

Be afraid. Be very afraid. In simple terms, it means that the next Government, and there will be one, can choose to hold Royal Commissions into its predecessor's actions on particular matters (refugees come to mind) and provide the most sensitive cabinet documents to support its case. Alternatively, the Commission may demand those documents. As our former PMs said, payback followed by payback. 

Postscript

There is a little more analysis in this ABC News report. In a comment, kvd wrote:  

Abbott tonight: "Can any of you think of a government program which actually killed people?"
Snowy Mountains Scheme, War (anywhere, but specifically) in A'stan, and I'm willing to bet that Sydney's second airport will have a death or three. In other words, just about any government program you might name.

This man is not stupid, so there must be something deeper in his present rhetoric.

I don't know whether or not there is anything deeper in the present rhetoric, but if quoted correctly, that is a monumentally silly rhetorical question from Mr Abbott. Try this story, for example: Scott Morrison admits information he gave on Manus riot was wrong. Can't you see the questions coming up as people trawl back through the records?

There is something badly out of kilter with this Government's judgment and priorities. The really annoying thing from my perspective is that it's distracting from other things that are very important from a policy perspective.

The Commonwealth is now in diabolical trouble largely of its own making. Much of the media reporting is unfailingly negative, with doubts surfacing even in the supportive papers.

I do not pretend to know how all this is playing out in the electorate. The latest opinion polls showed a bounce-back in Government support. I do think that the Government cannot afford many more mistakes at a time when it is trying to soften the electorate to an apparently tough May budget.

Australian elections are won or lost in the middle ground. Compulsory voting reinforces this. While I don't know about public opinion in general, I would be pretty sure that Government support in the middle is starting to erode. This doesn't happen overnight. It takes time.

Opposition leader Bill Shorten must really be counting his blessings. Immediately after the last election, the Labor party was a dispirited mess. Now membership is up, the faithful have been reinvigorated and Mr Shorten really hasn't had to do a thing. It's been done for him!

Strange times.

Postscript 2

A commenter asked "Where does the Archives Act 1983 fit into this"?" It has been a very long time since I had cause to look at this act. I have had a quick browse only, you will find the Act here,

Having browsed the Act, the short answer is that I am not sure. One question might be whether or not the cabinet records in question are classified as a current record or have been transferred to Archives. The legal position appears to be different. A second question lies in the distinction between giving the Commission access to cabinet records (intuitively, that would appear to be legal since the Commission is a Commonwealth creation) and any subsequent publication by the Commission. Would the time limitations on public access set out in the Act impede the Commission?

Senator Brandis' statement would appear to suggest that the Commonwealth can give the Commission access to the records, but that the Commonwealth reserves its position on any publication. Perhaps some more expert reader can better explain the specifically legal issues.

Postscript 3

This is the record of what PM Abbott actually said. Thanks to kvd for the link.  

"QUESTION:

Has the Government handed over Cabinet documents to the pink batts Royal Commission?

PRIME MINISTER:

We've established a Royal Commission because we want to get to the bottom of the most incompetently managed programme in Australia's history. Can any of you think of a government programme that actually killed people? Let's not forget that this programme was so incompetently devised and carried out that it resulted in four deaths, hundreds of house fires, a billion or so was spent putting insulation in and then a billion or so was spent taking insulation out.

An absolute monumental act of ineptitude. Now, it's very important that we get to the bottom of how this happened and why this happened so that we can learn the lessons and make sure that nothing like this ever happens again. What is actually required and who is actually going to be interviewed, will be a matter for the Royal Commissioner. If the Royal Commissioner asks for documents, that's a matter for the Royal Commissioner.

QUESTION:

Do you think that would set a dangerous precedent for the future though, if you did hand over those Cabinet documents?

PRIME MINISTER:

Well, it's not a question of us handing over the Cabinet documents, Royal Commissioners are entitled to ask and to indeed be supplied with documents. Royal Commissioners have very extensive powers to demand documents, to summon and question witnesses. This is a very powerful inquiry and it should do its job.

QUESTION:

There have been calls for a royal commission into the asylum policy. One could argue that that’s a government policy that’s resulted in loss of life.

PRIME MINISTER:

There is an inquiry going on into what’s happened in Manus. We’ve got General Campbell up there at the moment, so that we know exactly what’s happened. The Papua New Guinea authorities will have their own inquiries into what happened. The important thing is that we protect our borders, we implement our policies and we maintain order in these camps and I'm pleased to say that despite a very serious riot, the camp was fully functional the next morning, people were being fed, people were being housed, people were being looked after and our obligations were being discharged."

Postscript 4

Am I the only blogger writing on this? I did a web search across the blogosphere and could not find a single reference beyond this post. Anybody else out there?

Postscript 5

One of the things that I really like about my commentators is the way that they help me carry a story forward. In this case, the key question becomes was the Government asked or did it volunteer? If it volunteered, that's the end of the story. If it was asked, how did it respond?

From this story, the facts appear to be these:

1. The government was asked. The PM approved the release.
2. Neither the Prime Minister nor anyone from his office had seen the documents, which were passed to the Attorney-General's Department to send to the commission. They were part of 4,500 documents supplied over time, including a range of cabinet documents.
3. The cabinet documents were given to the royal commission on the condition they be viewed privately. If the commission wants to make any of the documents public, the Department of Prime Minister and Cabinet has requested it be told in advance so it can apply for a ''public interest immunity'' waiver to block publication.
4. Cabinet documents had previously been provided to two royal commissions, (the Centenary House investigation and the inquiry into the Mohammed Haneef affair), so it wasn't the first time.

If these facts are right, then there are still points to argue, but they are somewhat different points. It leaves me wondering about ministerial advisers. Have they become so wet behind the ears that they can no longer deconstruct an argument and present facts and principles? 

Postscript 6

Thanks to the digging of my commentators, this matter has shifted again. First, however, all this has Ross Gittins quite upset: Under Tony Abbott, political principles reach an all-time low.

Turning now to my commenters, the Hansards to the estimates' discussions on this matter are:

• First, the PM&C discussions
• and now the Attorney General discussions.

These cast a different light again on the discussions. meantime, kvd has been exploring the history of the apparent transmission of cabinet papers on two previous occasion. This raises at least some uncertainties. He also asked for the definition of cabinet papers. I thought I knew, but now it seems that I don't.

All this requires a proper forensic analysis. Maybe next week!

Musings on history, complexity and the monarchy

Interesting piece in The Telegraph (London) by Peter Osborne, Only the Queen understands the true value of the Commonwealth. Triggered by a new book, Monarchy and the End of Empire by Professor Philip Murphy (OUP), the article discusses the interrelationship between the Queen's role as British head of state and as head of the Commonwealth. When speaking on British matters, convention dictates that she must speak as directed by the British Government. However, as head of the Commonwealth she speaks independently, The British Government cannot dictate her words, nor indeed her role.

Peter writes from a British perspective. However, the actual position is a little more complex than that, for the Queen is head of state of 15 Commonwealth Realms in addition to the UK: Australia, New Zealand, Canada, Jamaica, Antigua and Barbuda, Belize, Papua New Guinea, St Christopher and Nevis, St Vincent and the Grenadines, Tuvalu, Barbados, Grenada, Solomon Islands, St Lucia and The Bahamas.

While national constitutions vary, the Queen's central role in each Realm is identical to that holding in the UK. In Australia, for example, her formal title is Elizabeth the Second, by the Grace of God Queen of Australia and Her other Realms and Territories, Head of the Commonwealth. The wording in Canada is a little different, an older form, but the principle is the same. When acting as Queen of Canada, the Queen does so totally independent of her role as Queen of the UK or Australia, working within the same constitutional conventions that hold in the UK. In all cases, her role as head of the Commonwealth is a separate role.

There are republican movements of one sort or another in all the Queen's major Realms from the UK to Australia. In all cases, the focus is on the appropriateness or otherwise of the Queen's role as head of state in that country. There is less focus on the overall complexity of the Queen's role.

If you think about it, being head of state in sixteen sometimes conflicting countries is no mean feat. Add in her role in the different nations within the UK, Scotland is not the same as England or Wales or Northern Island, plus the Commonwealth. In all, the Queen has to be conscious of the sensibilities of fifty five countries, including many of their constituent parts.

This piece is not an argument for or against constitutional monarchy. My musings have taken me in a different direction. Given the complexities involved, can the current system survive and, if so, for how long?  

The present system works because of precise role separation that has evolved over a long period. The Queen reigns, but does not rule, providing a ceremonial and constitutional focus that has proved far more durable than might have been expected. It works because the monarchy stands above the cut and thrust of politics, providing a sense of ceremonial continuity. It works because of acceptance of often unwritten constitutional conventions. It works because of the Queen's self-discipline, her capacity to distinguish between her roles, her willingness to limit what she says and does despite her personal feelings.

Last year, Australia's retiring Governor-General Quentin Bryce delivered the ABC's Boyer lectures. In her last lecture, she publicly backed both Australia becoming a republic and gay marriage. Depending on points of view, it was variously hailed as a landmark speech or as a breach of the Governor-General's ceremonial role as the Queen's representative.

The Queen in her various roles as Queen does not have this type of freedom, no matter what she may think or feel. She must always exercise care in public utterances, conscious always of roles and responsibilities. Governor-Generals have a little more freedom, in part because the Queen stands above them. To a degree, they can become embroiled in political controversy without affecting the standing of the office they hold. But only to a degree.

The current system will certainly survive for the present. If anything, the monarchy has recently regained support in Australia and especially New Zealand and Canada. Interestingly, the ABC's Vote Compass (link above) suggests that support for a republic in Australia is inversely related to age, with lowest support among those aged 18-34, highest among those aged 55+

In the longer term?  I don't know. The odds seem against it.

To greater or lesser extent, human institutions are always ephemeral. The monarchy's greatest strength, its reliance on history, roles and conventions, is also its greatest weakness. It survives only so long as those conventions are accepted on all sides.  We have already seen in places including South Africa and Fiji how the constitutional monarchy was simply swept aside, replaced by a republic, when it became a perceived impediment to those in power. It also depends on the capacity and willingness of the Royal Family to continue to fulfil their traditional role. Both make the current system vulnerable in the longer term. 

Elections, representative democracy and popular opinion

As the Australian Federal election campaign enters its last week, both sides are attempting to appeal to what they perceive as popular topics with particular slices of the Australian population. Meantime, there appears to be a common view that this has been an uninspiring election.  Most people shrug and say that they are voting against or for the least disliked. Of course there are enthusiasts, true believers. Still, they appear to be a smaller group than usual.

Looking back over my writing on previous campaigns, I have railed against what I see as the supermarket approach to politics, the idea that parties put forward a series of specific offerings that voters then chose between; I have criticised the idea of mandate, that Governments must do just what they have promised to do at an election; and I have suggested that the idea that a popular vote at some point in time can somehow bind Parliament or Parliamentarians to either fixed agendas or specific leaders was a fundamental breach of representative parliamentary democracy.

Back in June 2012, Possum Comitatus had a rather interesting piece, What Australians Believe, that looks at certain sets of Australian views as measured by the polls. It may be over twelve years old, but it is still worth a read for the patterns and contradictions revealed actually frame aspects of the current election campaign rather well. For example, the conflict between the popular view that Government should do more and the equally popular view that Government is too large.

Now consider the following table. Even after all these years, the privatisation of icon Government enterprises is seen in negative terms. By contrast, the five following items including the GST are seen in positive terms. They each met with sometimes very strong opposition at the time, but are now seen in positive terms. Further comments follow the table.

The things I criticised  in my second paragraph have the effect of locking Government into a straight jacket set by popular view at a particular time. The role of Government is to govern, taking changing circumstances into account. This includes taking unpopular decisions, not implementing blind promises made at a point in time regardless, With time, some of those decisions will prove to be right if still unpopular, others will gain net approval but in fact be questionable. 

That's all part of our system. In the end, we give Governments power and expect them to exercise that power if with restraint. We do so, knowing that we can kick them out.      

First Footprints and constitutional recognition for Australia's First Peoples

Tonight a short ramble.

First Footprints

Neil liked the ABC's First Footprints, First Footprints delivered!, as did I. The series traces the long Aboriginal occupation of this continent. There were things that annoyed me in that first episode, but my reaction was in part that they did a pretty good job, in part wondering at just how far our knowledge had come since I was a member of Australia's first Australian prehistory honours class all those years ago.

For those who are interested, you can watch the first episode free on download for the next few days - http://www.abc.net.au/iview/#/series/12680.

Constitutional Recognition of Australia's First Peoples

As it happened, almost straight after watching First Footprints on download, I listened to a an ABC Radio National program on the Australian constitution, including a discussion on recognition of Aboriginal peoples in the document. As it happens, this is something that I agree with, but as I listened I thought how hard it all was, 

One problem is that exponents feel the need to convince, rather than explain. A second problem is that if you wish to bring about change on an issue, discuss the issue. If you mix it in with other causes, and "popular" causes tend to run in teams, then you will fail.

A third problem is that people fail to recognise that our apparently pedestrian constitution is simply legal wrapping surrounding Australia's parliamentary system of Government.

I have absolutely no doubt that there will be some form of recognition of Australia's first peoples inserted in the constitution. However, I also suspect that it will take between three and ten years because time is required for issues to be argued through and for a community consensus to form.

Setting the Boundaries for Change

One of the really big problems with constitutional change is simply setting the boundaries of change, That is why there is really very little chance of a republic attracting a yes vote. There is no agreement on the bounds, on the definition of just what a republic might mean.

Aboriginal recognition in a preamble is really a different issue. People can agree to that. If, however, the intent were to alter some of the substantive provisions, then I think that any referendum is likely to fail.

Role of Parliament

In any case, I don't think that substantive provisions are required. In our system, Parliaments have the power within the defines set by the constitution. Most of the real demands for recognition of Aboriginal rights can be achieved through Parliament. If they can't get through there, they are highly unlikely to get through via constitutional change.

This doesn't make a new preamble just a piece of window dressing. Insertion in the constitution actually places a pressure on Parliament. It increases the chances of other things happening.  

No pre-selection or pledge & the Rudd factor 2

This post follow's up yesterday's No pre-selection or pledge & the Rudd factor. The no pre-selection or pledge is in fact the first political slogan adopted by the NSW Progressive, later Country, Party. I will come back to this in a moment. Immediately, where do political parties fit into the Australian constitution?

The short answer is that they don't in any formal sense. They are essentially an enabling device, a way of organising votes for elections to gain seats and then organise MPs on the floor of Parliament so as to gain or influence power. As such, they sit outside the formal constitution.

Are they an efficient device? It depends on what is meant by efficient. Measured by the capacity to organise groups and to gain power, they have been efficient so far as the Australian system is concerned. Have they been a good thing in marshalling and focusing opinion, in presenting alternative ideas? This one is more arguable, although I think that most Australian historians would probably answer yes.

An effective party system requires an degree of discipline, a willingness to adhere to a party line. Where party lines are more fluid as in the US or PNG, a degree of governmental paralysis can result. On the other hand, too rigid a party system totally focused on winning and power can lead to dominance of one view, a crowding out of alternatives, the atrophy of Parliament itself in the face of executive power. So where do you draw the line?

The two elements in the Progressive Party electoral slogan bear upon this question.

The Party was formed in part in opposition to what was perceived at the time as the rigidities and evils of machine politics. The no pre-selection element meant that the Party could not discriminate between candidates. Any member in good standing should be able to run in the Party name. leaving it to the electors to decide, to choose between them. This one fell away for practical reasons, although the habit of endorsing multiple candidates for a single seat would last for decades.

The second component, no pledge, reflect a similar constitutional ethos. It was a reaction to the signed pledge that, with varying wording over time, demanded of Labor candidates that  if elected they would always vote in Parliament in accordance with the platform and decisions made by a vote of the Caucus. This was seen as un-Parliamentary and undemocratic.   A Parliamentarian acquired a greater loyalty to constituents and Parliament. This view was not universal even in the Country Party. The more politically radical small farmer based Victorian Country Party, for example, did initially demand a pledge.

So we have a spectrum of views from loyalty to the Party as dominant on one end of the spectrum, with loyalty to Parliament and the freedom of Parliamentarians to follow their conscience at the other end. Mind you, loyalty is always a relative concept as evidenced by the size and venom of the Labor splits during the First World War, the Great Depression and then the mid Fifties.

In similar vein, at the other end of the spectrum you can see the tensions that can arise in areas such as refugee policy where members do exercise their conscience against the wishes of the Party. You can also see it in some of the more venomous attacks on Messrs Windsor and Oakeshott over their perceived disloyalty.

If we now look again at Mr Rudd's proposed changes to the election of the Labor leader, this is really an extra-constitutional matter since it is concerned with the way Labor governs itself, and that is not an constitutional issue as such, although it may have implications for the power of Parliamentarians. In Canada, for example, historian Christopher Moore has long argued that the Canadian system of electing leaders has actually emasculated the power of Parliament and of Parliamentarians by taking away the power of Parliamentarians to chose their own leader.

It seems to me that Mr Abbott's comments about the people electing the PM is quite a different matter. They don't. That is anti-constitutional, Even leaving aside the constitutional position, if the public opinion polls are any guide,the majority of the people don't want Mr Abbott as PM, they won't be electing him. Rather, if the Coalition wins, people will be voting for a Coalition Government of which Mr Abbott happens to be the head.

You can see this even more clearly, perhaps, if you look at the National Party. Clearly people aren't voting for Warren Truss as National Leader and Deputy PM, but for the local member and/or party. Mr Truss has been a loyal deputy in the Coalition, but should he become Deputy PM, nobody could really say that he had been elected by the people, just his Party colleagues. And that, to my mind, is as it should be.          

No pre-selection or pledge & the Rudd factor

I have been slow to post because I am bogged down in writing.

In my last post (Saturday Morning Musings - the Rudd electoral factor) I wondered about the benefits of incumbency in the rather unusual Rudd context. Now that seems to be flowing through - see Abbott under pressure as the game changes as an example.

Meantime, the recent post I wrote on representative democracy, The importance of representative democracy, retains relevance. The importance of Parliament was central to that post.

At one level, Mr Rudd's proposal that the Labor leader should be elected by a mixture of Parliamentarians and the Party membership seems democratic. But is it? How does it fit with the ideal of Parliamentary democracy and the power of Parliament? Equally, and as the Australian Democrats found, election of party leaders by party members can be very messy.

Mr Abbot's response that Mr Rudd is wrong, that the people elect the PM, is worse for it is a clear breach of representative democracy. The people don't elect the PM, nor can or should they in our system. That's not their role.

And the heading in this post? It's a political slogan from the past. I will explain tomorrow.  

The importance of representative democracy

Tonight I listened to Tony Abbott saying that the Australian people elect the Prime Minister. They don't, nor should they if you want to maintain our current system of Government.

Maybe you don't so, so present your alternative.

In our system, Parliament is the supreme being. Parliament appoints the Prime Minister by awarding confidence. It is Parliament that stands between us and the overbearing coercive power of Executive Government.

In a comment, kvd provided this quote from Edmund Burke:

"Your representative owes you, not his industry only, but his judgment; and he betrays instead of serving you if he sacrifices it to your opinion" - 

This pretty well captures my own position. I come from a particular populist tradition, New England populism, but it's a tradition that combines populism with a powerful belief in Parliament.

When I come to vote at the next election, I will not be voting for either Messrs Abbott or Rudd. Indeed, if I could I would be highly unlikely to do so! I am voting for my local member of the House of Representatives and my possible representatives in the Senate. I may take Party issues into account in that vote, but I am not voting for a Party nor, heaven forbid, for a leader. I don't actually need a leader. Sorry about that.

What do I expect from my local member? I expect them to represent their electorate, to try to meet the needs of their constituents in the most basic sense. I expect them to respect Parliament, to be prepared to act honestly and to explain to me what they have done and why. If I don't like their position and regard that as very important, then I can vote against them next time,

I accept that they are probably a member of a Party and wish to advance the interests of that Party. I accept that this requires compromises, that on many issue things are not black and white, that compromises have to be made.

I do not expect my MP to be an intellectual genius, nor do I judge him as a future leader or manager. That's not his first role, although he may be both leader and manager. I accept that Party structures are a useful practical device in terms of the practical working of Parliament, the articulation of alternative ideals, the specification of alternative views on policy.

I do not accept that people should be selected just on the grounds of their potential contribution to the future of the party or to Executive Government. I want them because they are human, understanding, sometimes confused, can help set value frameworks. I don't expect them to be intellectual giants, I am happy to accept that they have personal failings.

The Prime Minister's role is not to run the country. He or she can't. It's too complicated. The PM's core role is to help articulate a framework. We have lots of good public servants who can develop and implement policies once the frame is set. 

Governments cannot be trusted. Sorry, but it's true. They form a view of what is right, it's called the national or public interest, and then try to drive that through. But that national or public interest is a very slippery concept. Over history, it has been used to justify many rather nasty things.

In all this, we rely on Parliament as our bulwark, the thing that tempers. That's why I support representative democracy.

Postscript

Winton Bates  put up a companion post to this one, Do Australians elect the prime minister?. I actually disagree most profoundly. Can you see why?

Jottings - Slipper, the power of the Executive

With thirty boxes still to unpack, I am struggling to post tonight. Just a few snippets.

I haven't written anything on the Peter Slipper issue and don't feel strong enough to try to explain it all to my international readers. But just to give you a feel, consider these two stories:

• Slipper diary 'was sent' to LNP rival
• News named in Slipper case.

I must say that the whole thing bemuses me.

In my post, Jottings - the environment, entitlements and the High Court with a dash of media, I said in part:

At the end of High Court asserts the power of Parliament, I expressed the hope that Legal eagle would explain the implications of the school chaplain court case to us all. She did so in High Court Chaplaincy case and government contracting. kvd, a regular commenter on both blogs, expressed his continuing confusion. I share that confusion. The decision followed the earlier decision in the Brian Pape case and in a sense amplifies elements of that decision.

To my mind, the issue is not contracting as such, although the case has led the Commonwealth to foreshadow rushed legislation to validate a whole series of previous arrangements. Rather, the whole imbroglio appears to have profound implications for the workings of Government, with something of a baby and bath water flavour. Mind you, that's a dreadfully mixed concept!

Now kvd has directed me to this post by Anne Twomey: Parliament's abject surrender to the Executive. I think that she has well captured some of my concerns. Well, I want to unpack some more boxes!