Draining the Canberra Swamp

Spartacus will leave all the debates about Member and Senator eligibility under Section 44 of the Australian Constitution to others, but will note that Section 44(i) says that any person who:

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;

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

Notwithstanding, Section 42 of the Australian Constitution says:

Every senator and every member of the House of Representatives shall before taking his seat make and subscribe before the Governor-General, or some person authorised by him, an oath or affirmation of allegiance in the form set forth in the schedule to this Constitution.

Yet the oath or affirmation of allegiance is to the either the King or Queen of the United Kingdom of Great Britain and Ireland, and not to the King or Queen of Australia.

The present monarch is Elizabeth II, styled Queen of Australia, who has reigned since 6 February 1952. She is represented in Australia by the Governor-General, in accordance with the Australian Constitution and letters patent from the Queen.  In each of the states, the monarch is represented by a governor, appointed directly by the Queen on the advice of each of her respective state governments.

Note also that Schedule on page 1 of Royal Style and Titles Act 1973 states the new form in full as:

Elizabeth the Second, by the Grace of God Queen of Australia and Her other Realms and Territories, Head of the Commonwealth‘.

Thus, it seems, that to take their seat in Parliament, our Members and Senators either swear allegiance to a foreign sovereign (Queen of the United Kingdom of Great Britain and Ireland) or they don’t take their oath/affirmation as prescribed by the Constitution. Either way, should they be there?

Is this the time and mechanism to drain the swamp?

Follow I Am Spartacus on Twitter at @Ey_am_Spartacus

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45 Responses to Draining the Canberra Swamp

  1. DM OF WA

    Why should any sensible person waste even a second of their time on this?

  2. Nicholas (Unlicensed Joker) Gray

    Combine Monarch and Governor-General into one Regent, keeping all the ‘crown’ and ‘royalty’ words in the Constitution, and have the post open to all Australians at each Federal election. Then make the person also the Elected head of the Ombudsmans Office, able to make random inquiries about any other elected member of Parliament. the post would have some power, but would not be able to make policies, thus keeping the pollies happy. the high court would decide if any reserve powers apply, and under what conditions. Perhaps we could change ‘Royal Australian’ into ‘Our Regal Australian’.

  3. stackja

    Amending the Constitution? What could possibly go wrong?

  4. Dr Fred Lenin

    The present crop of treasonous career political incopetents are just the mob to meddle with our constitution after all it does work and these useless units never try to fix things a that are not working much too hard .work is not their forte .

  5. Boambee John

    Nicholas

    Go one step further, have the Regent sit in Parliament as the Speaker?

  6. Boambee John

    An elected Speaker with the current powers of the Speaker plus the GG, and able to enquire into any actions of any member of both Houses.

    Now about this whale watching trip Senator? And the staff member you slept with whike on official business overseas Minister?

  7. .

    The Queen is the Queen.

    Check the covering clauses.

    2 Act to extend to the Queen’s successors

    The provisions of this Act referring to the Queen shall extend to Her Majesty’s heirs and successors in the sovereignty of the United Kingdom.

    The Crown in right of Australia is different to the Crown in the right of the United Kingdom.

    She has no power. She acts like a mechanical governor. I’m a republican, but it works.

    The problems chiefly are non-literal jurisprudence, the corporations power, the external affairs power and the nationhood power – and to a lesser extent denial of the proper operation of civil rights under s 92 and other implied rights such as free speech. An unforeseen issue is that the PM in inherited powers that the British crown had and the PM was never envisaged to have – Australia was viewed as a self-governing colony (covering clause 8) [this also goes to the nationhood power]. Finally, the modern operation of intergovernmental immunities is plainly wrong.

  8. Empire GTHO Phase III

    Aside from the fact you are a republican, you’re solid on this stuff, Dot.

    There was a bush lawyering movement about 20 years back that chased the rabbit down the burrow in the manner Spartacus suggests, but IIRC it amounted to nil.

  9. .

    Actually, I think the 1999 referendum stuff was very well written, drafted by passionate republicans who appreciated all of the good stuff that we currently have in the separation of the sovereign and effective head of state (governor general). It was a bit like the Wizard of Oz though, and if you weren’t legally educated it looked like undemocratic chicanery. Pretty funny I say that because the Queen is like a tribal deity in our system.

  10. Graham Cameron

    S 44 (i) doesn’t just exclude citizens of other countries, it also excludes anybody who is “entitled to the rights or privileges of a subject or citizen of a foreign power”. Doesn’t that apply to most Australians? From the NZ electoral website: “If you are a Cook Island Maori, Australian, Niuean or Tokelauan you can enrol once you have lived in New Zealand continuously for 12 months – you do not have to hold a resident visa to enrol and vote”. So although I have not lived in NZ, I am able to, which means I am ultimately entitled to. Doesn’t it? As far as I can see, I am entitled to the rights of a NZ citizen, once I have lived there for more than 12 months, even though I am not actually a citizen. So you don’t have to be a duel citizen to be excluded, just be entitled to the rights of a citizen. I’m confused!

  11. Empire GTHO Phase III

    If we ditch The Queen, I give it 10’years before we kill a president.

  12. Snoopy

    If we ditch The Queen, I give it 10’years before we elect a Chavez.

  13. jock

    Just a question. Since federation most members would have had a relationship with britain and new zealand. Billy hughes was born in wales of welsh parents and was in parliament for 50 years. Was he legitimate? How many others were the same? Especially since ww2. Those from any european heritage will know that citizenship can be conferred by those nations. My question is what about the legislation they helped pass. Is it still on foot? If so why?

  14. Oh come on

    No. Disregarding the constitutional arguments, you’re overlooking the critical role conventions play in Westminster-based parliamentary systems.

    Speaking of bush lawyers, I heard that Prince Leonard and his offspring recently lost their court case and are about to be bankrupted by the ATO. Can’t say I feel particularly sorry for him. He’s been mooching off the state for decades.

  15. OneWorldGovernment

    Snoopy
    #2469762, posted on August 15, 2017 at 6:10 pm

    If we ditch The Queen, I give it 10’years before we elect a Chavez.

    We’ve got competing Chavez/Maduro types now.

  16. Jannie

    No No No, the best way to drain the swamp is to enforce gay marriage and give aboriginals constitutional recognition. A carbon tax could help pay for the drain modelling consultants.

  17. Empire GTHO Phase III

    Jock

    At federation Australians were “British subjects”, so Hughes & co were not aligned with a foreign power.

  18. OneWorldGovernment

    Jannie
    #2469808, posted on August 15, 2017 at 6:41 pm

    No No No, the best way to drain the swamp is to enforce gay marriage and give aboriginals constitutional recognition. A carbon tax could help pay for the drain modelling consultants.

    Totally agree and increase the excise tax for on road fuel.

  19. Empire GTHO Phase III

    My question is what about the legislation they helped pass. Is it still on foot? If so why?

    IIRC -‘The bush lawyering I allude to above claimed that all MPs since 73 were improperly sworn as The Queeen of Australia could not legally be established by the Commonwealth Parliament- ergo all legislation passed was invalid.

    I was somewhat hoping they got somewhere.

  20. jock

    Empire. Ta. It apprars though that circumstances changed but the vonstitution didnt. Should be interesting to see how the high court deals with this.

  21. Roger

    Sinc,

    Can you put Spartacus on a strict ration of posts?

    Thanks kindly.

  22. Docket62 (deplorable)

    Seriously Dot, if you arent a constitutional lawyer you should be. Detail detail detail

    I have a foot in both camps, having sworn an oath to the sovereign, which is never rescinded. I can see the benefits of both the Westminster system and presidential elections, although the latter I think requires a lot more money. That in some respects is appealing as it may stop the preselection process dead, but given the funds in union Super camps one wonders how that would/could be manipulated.

    I also don’t think Australia will shoot a president. We are too laconic to actually give a toss.

  23. Leo G

    S 44 (i) doesn’t just exclude citizens of other countries, it also excludes anybody who is “entitled to the rights or privileges of a subject or citizen of a foreign power”. Doesn’t that apply to most Australians?

    I doubt that it does apply to most Australians.
    The the meaning of word “entitled” is not that of the common usage, but rather of legal usage. An example of the latter entitlement- to rights or privileges of a citizen of a foreign power- is a permanent residency visa granted by a foreign power to a person who is not a citizen of that foreign state.
    The holder of the foreign visa may be able freely to leave and re-enter the foreign state. A common feature of a permanent residency visa is that the holder is entitled to stay in the foreign state indefinitely- even after the expiry of the visa.
    Any Australian might be qualified to apply for permanent residency in a foreign state. That hardly means they are entitled to any of the benefits of a citizen of that state. The situation only changes if the residency is granted.

  24. Pedro the Ignorant

    The Parliament is full of dodgy foreigners governing Australia.

    “She’ll be right, mate”.

    FMD.

  25. R. W.

    Queensland, under Joh, in his fight with Witlam. Addressed this very problem to ensure that we would have direct access to the Queen in a constitutional crisis, and if my memory serves me correct he legislated in Queensland her citizenship

  26. R. W.

    Our constitution was written by men with a lot more nous than any of the crew we have in the swamp at the moment. It has worked well for the last one hundred years,through some pretty tough situations. There is no evedince of it failing in the near future. Change one iota of it at your peril. Learn to work with the rules rather than bend the rules to a wim.

  27. At federation Australians were subjects of the British Empire. “Foreign power” meant other empires or nations. Canada and New Zealand were not foreign powers.
    .
    If we accept the meaning at the time of drafting the Constitution, then should marriage also take its meaning from legal practice at that time?

  28. Andrew M.

    “I just think, what’s our taxpayer money going to? We all pay taxes, we all should have good internet, shouldn’t we?”
    http://www.abc.net.au/news/2017-08-15/nbn-customer-complaints-still-too-high:-ceo/8809148

    If we have a Queen as head of state, shouldn’t we all have Royal Internet service?

  29. .

    Docket62 (deplorable)
    #2470004, posted on August 15, 2017 at 9:30 pm
    Seriously Dot, if you arent a constitutional lawyer you should be. Detail detail detail

    Sorry I know it must be a pain the arse having an unqualified student gibber on. (You must realise how cringeworthy some of the economics questions are for me, rabz, sinc etc…). I will endeaveour to write more thought out and detailed (but more succinct) replies in the future.

  30. .

    The the meaning of word “entitled” is not that of the common usage, but rather of legal usage.

    This is actually very interesting, despite being really “dry”.

    The engineer’s case would follow the common usage, but this involves context as well. I contend that basic law ought to be applied as literally as possible. It is hard to get away from the originalist debate with regards to the clause being antiquated.

    The Constitution came before the Interpretation Act, and the “stream may not rise higher than the source”. I think the principles of interpretation ought to be followed sequentially.

    (Very roughly)

    1. Literal application.
    2. Textual application.
    3. Originalism.
    4. Contextualism.
    5. Comparative approaches; the golden rule, the mischief rule and then purpositivism outside of 3. and 4.

    Then we have different schools of jurisprudence, from realists (Learned Hand), positivists (HLA Hart) and anti-positivists (Dworkin) and the “navigational” models such as Alenikoff.

    The Constitution has no dictionary and words are generally interpreted by their ordinary usage unless defined in the statute.

    The methodology you make in applying one section ought to apply to the whole document.

  31. OldOzzie

    The day New Zealand conspired to overturn Prime Minister Malcolm Turnbull

    If you weren’t unnerved on Monday about the implications of the uncertain grip of the Turnbull government on office, its most senior members seemed determined on Tuesday that you should be.

    Talk about losing it. The Barnaby vortex opened and consumed Foreign Minister Julie Bishop in a whirlpool of hysteria and conspiracy theories that would do Donald Trump proud.

    Bill Shorten, she said, had sought to use a foreign political party to raise serious allegations in a foreign parliament designed to undermine confidence in the Australian government.

    He had “serious questions to answer”, she stormed in her “I am a very, very cross foreign minister” voice. “This is highly unethical, at least”, she charged.” But, more importantly, puts at risk the relationship between the Australian government and the New Zealand government.”

    But why should she have all the fun? The Prime Minister told his party room that “Bill Shorten wants to steal government by entering into a conspiracy with a foreign power”.

    It continued in this vein in question time – an utterly hysterical bit of political overkill that tried to turn the government’s mortification over the fact that, on the face of it, the Deputy Prime Minister shouldn’t be sitting in the Parliament – into a Labor conspiracy, because someone in the ALP dared to ask someone in New Zealand to check up on citizenship requirements.

    The overkill only added to the sense that the government really doesn’t have a clue about political strategy, and how, under pressure, it falls to pieces, rather than finds a path through one of those grin and bear it phases of politics which its own rhetoric suggests is underway.

    After all, the government keeps telling us it is confident that Barnaby Joyce’s position will ultimately be supported by the High Court, which means the current unpleasantness will all go away in a couple of months. It just has to weather the storm.

    Instead, it carries on like a bunch of hysterics and, almost like clockwork, also managed to lose a vote in the House of Representatives.

    Is the normal business of government able to carry on in these circumstances? Well, negotiations in the Senate over media reforms – which feel like they have been going on for years – reached a new point on Tuesday when One Nation was given the nod by the government to go out and announce it had done a deal to give conditional support to the government’s reforms.

    The conditions include what can only be seen as both some intense political payback by a minor party damaged by ABC’s Four Corners and by questioning on Insiders which helped undo its Western Australian election campaign, and of more concern, an entrenchment in the political system of a commercial assault on the ABC by the private media companies.

    It’s not clear the One Nation amendments will ultimately succeed – other crossbench players remain concerned and are still trading. But if the One Nation amendments get up, there will be a star chamber inquiry challenging the rights of the ABC to exist and an obligation on the broadcaster to reveal its employees’ remuneration.

    In the meantime, the government has allowed itself to look like One Nation is setting the terms of the media debate.

  32. alexnoaholdmate

    The link to the path you provided simply states we swear an oath to Queen Victoria and her heirs.

    Which amply covers Elizabeth II, Queen of Australia.

    Nothing about an oath to the “Queen of the United Kingdom.”

    So what’s the problem? Have I missed something?

  33. alexnoaholdmate

    I also don’t think Australia will shoot a president. We are too laconic to actually give a toss

    I think one of the reasons we are laconic about politics is because, at the end of the day, there is a wicket-keeper in our Constitution – Her Majesty and her Governor-General – that stops the ball running away to the boundary.

    Whatever they may say or do in Parliament, that non-partisan and impartial wicket-keeper is always there to step in (theoretically, at least) and prevent the system from crisis – or dictatorship.

    Change that to a President chosen by a purely political process – or a damn dirty election campaign – and things might be different.

  34. Louis Hissink

    If global governance is the source of your political jollies, then national allegiance is but a mere bureaucratic trifle, to be glossed over for earnest and serious people who in their heart of hearts ultimately owe their allegiance to the UN.

  35. Philby

    The Parliament is full of dodgy foreigners governing Australia.

    “She’ll be right, mate”.

    FMD.
    Only citizens born in Australia should be able to take a seat in Parliament that way at least they will have been raised in the Australian way and should be more inclined to uphold our laws our culture and traditions.

  36. Philby

    I also don’t think Australia will shoot a president. We are too laconic to actually give a toss

    By golly we may not have killed a Prime Minister but we most certainly have had political killings and attempted attacks on politician/s. The nutters are out there and growing in numbers by the second . What with the violence of the mobs like Get Up and other Soros funded groups of Marxist thugs this country is far from immune from any future assassinations. Alt Left violence increases daily and will have to be reigned in.

  37. Garry

    It is almost as if the parliament is actively working against the interests of citizens of this country. For months now not one mention about energy prices, cost of living or anything remotely to do with middle Australia! All we see is this endless preoccupation with climate change, homosexual marriage, indigenous recognition and now dual citizenship of politicians. Stuff the lot of them! Corey Bernardi us looking better and better every day compared to this self absorbed rabble.

  38. jock

    Denis shanahan has it right. Turnbull and his ministers have been properly outpoliticked by labor on this and other things. Its about time the set asude the nice pills and got a bit of mongrel. Howard had tony and costello to help him. Im afraid there are not too many contendrrs as the attack dog in turnbulls lot. Any suggestions?

  39. Good governance matters!
    Why not distribute the royals post-Lizzie, Harry to Canada, Charles and what’s her name for the quaint island off the cost of Europe (and maybe Gibraltar, Falklands, ..), Will and Kate downunder?
    Beats some pollyTIC as Prez.
    The royals have no need to grab from the 3rd estate, their ancestors already did, the wrong side of the Enlightenment.
    State premiers and governors could be rotated through the PM and GG slots, like annually.
    Versailles on Lake Blwxyz Griffin, home of Washminster-style repressive democracy, should be reduced to about five ministries (#), have the rest done by the states.
    Change income, payroll and stamp dollar grabs (down), along with GST (up).
    Split religion from charity, and tax the former at the highest rate. Ready the po-lice and DPP for when the Royal Commission into Institutional Abuse finally reports, check how proceeds of crime legislation would apply to clusters of abuse.
    A federal ICAC, campaign finance reform (either you get money from the taxpayer or lobbyists, but not both), same month disclosure of donations in dollars or in kind.
    Half parliament, and pay those remaining double (quantity so does not have a quality all of its own).
    Allow voting from electoral offices, to cut down on travel (use COAG’s high end conferencing system), and have pollyTICs that go home to their families/ communities at night.
    Citizen legislators … put limits on the number of lawyers, spin doctors/ union hacks that can be nominated, have more engineers, doctors, teachers …
    Make aspiring pollyTICs sit a public service exam of sorts, so they can fill out forms (like on citizenship(s)), and make it mandatory to have a minimum of 5 years of real world work experience.
    More direct democracy, including term limits, recall provisions, popular initiatives.
    Real transparency instead of FOI.
    Anything over x dollars, y people, z levels of gov not part of a published election program to be subject to a mandatory and binding referendum, including ADF adventures more than 1000 kms from Australia’s economic zone or territorial waters.
    Be conservative on the economy like Switzerland, progressive on social matters like Scandinavia.
    Signal the change by removing the colonial Union Jack off the flag.

    (#) DPC/ COAG/ benchmarking, justice, dollars, defence, trade …

  40. T

    Despite the accuracy of the first commenter, I will comment. This post is legally nonsense, and the post itself says so. Allegiance is to the Crown in the right of Australia, not the UK. Bush lawyerism is too polite for this post – it is sheer crankery and would be laughed out of court.

  41. I know one thing for sure, Liz is NOT a citizen of the UK. In fact she is not a citizen of any country. Doesn’t hold a passport even.

  42. alexnoaholdmate

    I know one thing for sure, Liz is NOT a citizen of the UK. In fact she is not a citizen of any country. Doesn’t hold a passport even.

    Because all passports are issued by her.

    Constitutionally speaking, at least.

    And as sovereignty in the UK flows from her, can you be a citizen of your own sovereignty?

  43. Leo G

    The Constitution has no dictionary and words are generally interpreted by their ordinary usage unless defined in the statute.

    True, but no written constitution would be interpreted using common usage, with its inclusion of figurative language that varies over time and societal strata.
    Moreover, in this case it is not just the uncertainty in the definition of words in Australian Constitution that matters, but also the definition of idioms used in foreign laws- such as the 1948 British Nationality and New Zealand Citizenship Act. That New Zealand Act does have definitions and has literal interpretations of the meaning of terms such as “New Zealand citizen”. If you examine the 1948 Act you find that a “citizen by descent” is not a New Zealand citizen until the citizenship is registered.
    What should be important in the cases of Australian parliamentarians is that the relevant interpretation of citizenship or entitlement to rights or privileges to citizenship is one in accordance with the Australian Constitution and the rulings of the High Court of Australia, and not the vaguaries of the interpreation of foreign laws.

  44. .

    The brewer union label case (1908), re wakim ex parte mc nally (1999) and the professional engineers case (1959) confirm that the meaning is fixed at 1900 (connotation) but the application changes over time (denotation).

    What should be important in the cases of Australian parliamentarians is that the relevant interpretation of citizenship or entitlement to rights or privileges to citizenship is one in accordance with the Australian Constitution and the rulings of the High Court of Australia, and not the vaguaries of the interpreation of foreign laws.

    That is true because we’re a sovereign nation. It would be nice to see them eat their words over Heather Hill though.

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