Jim Allan: Speaking note on s44

Before I turn to talking about s.44 of our Constitution I thought it best to lay my cards on the table.  I’m a long-time conservative voter who is so disgusted with the Liberal Party in this country that last election I opted not to vote for it – not a single Lib did I vote for in the Senate (and certainly not Brandis) and as for the House I preferenced the Libs second last just above the Greens.  And as long as Turnbull is leader I don’t see that changing next election.  I say that as someone who, save for once spoiling his ballot in Canada, had always voted for the right-of-centre party before and as someone who is for small government, lower taxes, free markets, lots and lots of scope for free speech, and knows the benefits of free trade.  I am also a strong border protection person.  I find the ABC incredibly biased and don’t watch or listen to it anymore.  And if I can blow my own horn just a tiny bit, I predicted in print – before they happened – both the Brexit result (which was the best vote of my lifetime) and the Trump win (which I believe was also an excellent outcome).

Here, in brief, are just a few of the differences between Trump and Team Turnbull.

  • Picking judges and appointments generally
  • Cutting regulations
  • Opting out of the worthless Paris Accord
  • Cutting immigration intake
  • Proper approach to national defence
  • Cutting spending
  • Calling out media bias

We in Australia are better on free trade. Trump is pretty awful on that.  But I should note that my above list of Team Turnbull’s comparative failings doesn’t even cover the attack on superannuation; the previous Scott Morrison big spending budget; giving money to Gonski 2.0 without any demand for increased productivity or anything else and with educational outcomes now at or below Kazakhstan; the idiotic embrace of Finkel and an insane RET (when I arrived here in Australia in 2005 we had the democratic world’s lowest energy costs and now we have the world’s highest and most of that is due to Liberal party policies); the bank levy; the list goes on.  Let me be blunt.  In my opinion this current Coalition government is the worst right of centre government in Australian history.  It makes the McMahon government look like political statesmen, if not geniuses.

Let me now turn to s.44 of our Constitution, which in part reads ‘Any person who 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 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’.

I will approach this on two planes, namely the first principles ‘ought’ plane of whether this sort of provision is desirable and then secondly (and whatever your take on that question) the black letter ‘is’ plane that covers all the issues of how the provision has been interpreted and whether – to be blunt – Barnaby is going to win.

 Query # 1:

You do not need to have a written constitution to run a successful democracy.  The UK lacks one, or did until it entered the EU and so will presumably lack on again soon.  And NZ lacks one.  In those places you have parliamentary sovereignty – a legally unlimited elected parliament – and so each generation is left to decide everything for itself.  It is the most democratic system going.  And it has clearly been a success.  On balance, all things being equal, I prefer the NZ unwritten system not least because it puts more limits on the power of the unelected judges.  And if the last couple of decades has taught us anything it has taught us that top judges in the common law world have gotten way, way too big for their unelected boots.

And in that kind of a set-up, where you are not locked in by the constitutional rules from a century ago, I would not put in anything like this s.44 provision.  Remember, Winston Churchill had an American mother.  Did that make him unpatriotic?  If the US conferred citizenship through mothers would that have made Churchill a bad or suspect PM?  Would it have been a good call to disqualify him?  Macmillan also had an American mom.  Then there was Lord Beaverbrook, a Canadian.  There was the first overseas born UK PM, Andrew Bonar Law. And of course Britain’s first woman MP, Nancy Astor, was born in the US, was a US citizen, and moved to Britain only when she was 26.  And there have been plenty of British MPs from NZ and Australia, perhaps most recently Brisbane born and raised Ross Cranston, S-G in Tony Blair’s government, and almost appointed a UQ law professor.

And of course the rest of the Anglosphere doesn’t really do this s.44 song and dance. As far as I can see those overseas Parliaments are not infested with MPs focused on serving some foreign master.  For instance, I’m a native born Canadian and I can tell you that things are much more laid back about second citizenships there.  Indeed if you can vote in Canada you can run for a seat in the legislature.  As for the United Kingdom, well even voting there is not restricted to just UK citizens as many Commonwealth citizens can vote too.  New Zealand is more generous as well, allowing permanent residents of more than one year to vote.  To run for Parliament across the Tasman you just have to hold New Zealand citizenship.  (So yes, New Zealand is more generous to Australians as regards voting and running for office than we are to them.)

So on the plane of first principles, of how I think we ought to structure the rules in a modern democracy, I don’t like s.44.  I don’t believe the constitutional demand for no other citizenship – or indeed no entitlement to the rights or privileges of citizenship of a foreign power – delivers any net benefits, as a generalisation.  And note that when it comes to running for the legislature for our State parliaments, well, most Australian States only debar someone who actively takes up another citizenship or sensitive job whilst an MP.

Accordingly, I don’t like s.44.  I wouldn’t have included it had I been drafting our Constitution a century ago.  As I said, on the plane of first principles, I’m no fan.  I concede that I suspect that that puts me in the minority in this country.  And I have no doubt that trying to amend or remove s.44 via a s.128 constitutional amendment referendum has zero chance of success.  Today’s political class is widely held in contempt, for pretty good reasons, and anything that looks as though it would help that class would get absolutely slaughtered by the voters.

I might also add that s.44 has in my view been made worse by the High Court of Australia.  As intended by the Framers and Ratifiers of our Constitution the provision is a good deal less intrusive and malign than how it has now been re-written.  Or so I think.  And that takes me to the second plane of how s.44 stands today and whether Barnaby is likely to win.

Query #2:

Remember, the whole point of a written Constitution is to lock things in.  If you want flexible and easy to alter then you want a UK/NZ unwritten constitutional set-up. And so when you opt for a written constitution you opt for certainty and locked-in rules at the expense of each generation being more or less free to pick the rules it wants.

So s.44 was meant to lock us in.  I will read the core provisions to you all again.  ‘Any person who 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 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’.

There are two key HCA cases that have interpreted this section.  I don’t like the majority judgments or rulings or answers in either.  In Sykes v Cleary from 1992 the HCA was in part looking also at a different part of s.44, ‘holding an office of profit under the Crown’.  If the winner for Bob Hawke’s seat (an independent named Cleary) were disqualified by the HCA under that part of s.44 then the two next people under the recount were suspect on the basis that they might not have taken all reasonable steps to renounce their other citizenships – one Greek and one Swiss.

As for Cleary, the question was when to ask the question of dual nationality.  Justice Deane, in dissent, got it right in my view.  He thought Cleary had been validly elected.  The test should kick in the moment before the result of the poll is declared.  So you can nominate; you can win pre-selection; you can campaign; you just have to renounce other citizenships (or in Cleary’s case ‘not hold any office of profit under the Crown’ – I think he was a high school teacher or something) BEFORE you are declared the winner.  And remember that Cleary ran as an independent, so no big party machine to vet things before nomination.  Justice Deane worried that anyone working for the Crown (however defined, and at that time about 10 per cent of the workforce though these days God knows what astronomical figure it has hit) would massively deter a huge chunk of the population from running.  That sounds right to me. And it sounds right on the dual nationality criterion too.  The majority is Sykes disagreed.  They said that ‘incapable of being chosen’ takes the relevant time back to when you nominate.

So Cleary was out.  As for the other two, what you need to know is that the HCA did not say that foreign law is wholly determinative (ie what some other country’s rules say about who are its citizens).  So if you take reasonable steps to renounce some other citizenship, and that other country won’t let you, that’s okay.

It is that analogy that drives the case for the MPs who are optimistic about their chances.  Today’s case is not the same as the Sykes scenario as we are not today talking about anyone renouncing. Today we’re talking about knowing you had more than Australian citizenship. So some are optimistic that in line with Sykes the court will read in a ‘reasonable steps to know if you were a foreign citizen’ test.  If some crazy North Korean dictator quietly made half of Australians North Korean citizens too, it would not be reasonable to be aware of that, and you’d be okay.  Something like that.

The second case is Sue v Hill.  This comes in 1999.  Heather Hill wins election to the Senate in 1998 for One Nation.  She held Australian and UK dual citizenship.  Her election is challenged by Henry Sue.  And Hill loses and is disqualified.  Why?  Here it may depend upon what counts as a ‘foreign power’.  The HCA says that by 1999 the UK is a foreign power vis-à-vis Australia.

  • Note here types of constitutional interpretation and whether meaning changes over time
  • Meaning in 1901 = we are all Brits
  • Indeed almost all the problem countries or second citizenship countries for the MPs right now (NZ, Canada, UK) were not foreign powers in 1901, we were all British subjects. So can top judges re-write constitutional provisions? Did the Framers and Ratifiers want updating to be done by unelected judges or under s.128? If it’s the judges doing the updating then the written constitution is not really locking things in – which is the supposed benefit – it is just that only top judges get to do the updating rather than the elected parliament as in NZ

By the way this was a 4-3 case.  The minority judges said the HCA had no jurisdiction to hear the case.  This argument depends on the statute in play and on what counts as disputing an election result, and on whether you need a resolution of the Senate or House (whichever is relevant).  Callinan, Hayne and Kirby (yes, Kirby) said the statute – Commonwealth Electoral Act – conferred no jurisdiction.  They lost.  My rule of HCA constitutional case law is that whenever Callinan and Kirby are in dissent together, which is very, very, very infrequently, they are right.  Right here.  Right in Work Choices.

Barnaby Joyce et. al.

So will the HCA read in a reasonableness test with respect to whether we can say that an MP should have known he had another citizenship?  Well, they will have to put some sort of limit on the reach of overseas law and on what some other country’s law determines citizenship to be.  Otherwise you could have North Korea simply making Malcolm Turnbull North Korean and out he’d go – which all things considered we should not dismiss out of hand.

Joyce had a Kiwi father.  But he never moved there and he was not born there.  At the time of nomination – that’s the idiotic test the judges have laid down – would it be reasonable to expect people to know that the Kiwi’s passed a law that because of his dad automatically made Joyce a Kiwi?  Your guess is as good as mine on that.  The judges here have more or less complete discretion in my view.  It was an error, though, for Barnaby to renounce his Kiwi citizenship.  He wants to argue this Kiwi law has no legitimacy under Australian law so renouncing it was a blunder.  It makes it look as though you’re conceding the law’s legitimacy.

As for Canavan, frankly I just don’t believe his Mom did all those things and he never once knew.  Likewise that he never once received anything from the Italian embassy.  I did note that his lawyer in court conceded that some 1983 Italian law automatically made him an Italian irrespective of what his mother later did.  That’s a bait and switch tactic in my view.  They’re trying to shift the focus from the claimed facts to a more Barnaby-like, ‘this is imposed on us by foreign law’ scenario rather than a ‘we went and applied’ scenario.

The two Greens are stuffed.  They themselves were born overseas so they can’t win even under an imposed reasonableness test.  Larissa Waters and Scott Ludlam are out.

Finally I might just note that how you read s.44 might matter. Do you go for a plain reading or do you look at likely legislative intent.  Take ‘entitled to the rights or privileges of a citizen of a foreign power’.  On its face that catches virtually everyone.  But it would not have been intended to hit Kiwis, Canadians or Brits.  But that approach is not in favour in the HCA and was ignored in Sue v Hill.  But if the point of s.44 was to catch people who have dual sympathies then they themselves have to know about them or they can’t have them.

Basically I dislike this provision.  I dislike the way it’s been interpreted.  If I were forced to bet I’d say Barnaby will win, but I say that with 55% confidence, no more.

Let me just note that all sorts of other really important jobs in Australia can be held by those with dual nationality.  You can run our national airline.  You could run Telstra.  You could be given any top civil service job or head up the armed forces.

To my way of thinking this all shows up the downsides of a written constitution.

This entry was posted in Guest Post. Bookmark the permalink.

32 Responses to Jim Allan: Speaking note on s44

  1. Robert Mc

    as for the House I preferenced the Libs second last just above the Greens

    In the Division of … ?

    It might have been a meaningful gesture if you were in a swinging/marginal seat. But, if you were in a safe seat, no matter who it was held by, the gesture was meaningless.

  2. Rabz

    In my opinion this current Coalition government is the worst right of centre government in Australian history

    This statement is incorrect. The government in question is a far left one that is no longer even bothering to try and masquerade as a right of centre one.

  3. Rabz

    as for the House I preferenced the Libs second last just above the Greens

    So in other words, you voted labor.

  4. Robert Mc

    Meaning in 1901 = we are all Brits

    No, not quite correct. At the time the Australian Constitution was adopted and passed into law Australians collectively were British subjects. Those who were born in Britain were surely Brits, but those who were born here or in a country other than the United Kingdom were not.

  5. max

    a nation of laws, not men

    We are supposed to be a nation of laws, not men, and the fixation on individuals as saviors of our freedoms is misplaced. America will regain lost freedoms only when her citizens wake up and reclaim a national sense of self-reliance, individualism, and limited government. A handful of judges cannot save a nation from itself.

    Most people in New London, Connecticut, like most people in America, would rather not involve themselves in politics. The reality is that politics involves itself with us whether we like it or not. We can bury our heads in the sand and hope that things don’t get too bad, or we can fight back when government treats us as its servant rather than its master.

    https://www.lewrockwell.com/2005/07/ron-paul/we-have-no-jurisdiction-in-kelo/

  6. max

    At least two fundamental principles of Western law had their origin in Mosaic Israel. The first principle was the rule of law itself: every resident was to be protected equally by the civil law. The second principle was open immigration. The nation’s treatment of the immigrant served as a touchstone in Israel of the nation’s faithfulness to the first principle.

    Open immigration was an important means of evangelism. Strangers could come to Israel, settle there, buy houses in walled cities, become productive, and live in peace. They could obtain security of ownership for their property even though they were not citizens or members of the religious congregation. They even had access to the temple if they were willing to be circumcised, which was a unique openness in the ancient world. This was also part of the rule of law.

    Thus, Israel was not just the Promised Land for Abraham and his heirs. It was supposed to remain the Promised Land for the oppressed of the world. And, in some periods, it really was.

    the image of America as a sanctuary was a dominant one in the nineteenth century and the early twentieth.

    In ancient Israel, there was a national priesthood, which was assumed to be the primary agency of cultural assimilation for immigrants. This is why immigrants were allowed to become Israelites through circumcision.12 Political citizenship followed in three generations for Egyptians and Edomites,13 and in ten generations for Moabites and Ammonites.14 Confession, circumcision, and Passover were the initial means of assimilation. That is, the assimilation process began with religion. The same outlook long prevailed in the West, with the Christian church serving as the priesthood. The church was the primary means of cultural assimilation.

    A very big question is this one: in a nation that allows wealth re- distribution through politics, what is to protect today’s property owners from tomorrow’s voters? When people can vote for a liv- ing, what prevents the arrival of an army of new voters, many with their eyes on the politically transferable wealth of the Promised Land? Even if they do not understand how wealth is transferred politically when they arrive, another army of salaried welfare professionals will soon teach them. After all, their jobs depend on a continuing stream of recipients.

    In short, where the welfare state is deeply entrenched, a nation will no longer be willing to serve as a sanctuary. It costs too much. If the welfare state ever becomes universal, locked-in populations will also become universal. There will be no escape from tyranny because of the border guards who keep would-be refugees from crossing the border into greater freedom.
    A nation’s voters may seek to vote themselves wealth from their fellows, but in doing so they create an engine of plunder that evil men will seek to control.

    When civil covenants become covenants of plunder, then the threat to the right of voluntary contract escalates. When a war against property begins, those who command the plundering troops seek new recruits. Immigrants who are struggling hard just to get by economically make very good potential recruits.

    So, in a democracy, the immigrant becomes a political issue. (This includes those other unwashed would-be immigrants who sometimes face determined border guards: unborn babies.) Who sets the standards? Who says which moral heritage is valid and which must be resisted? Who predicts which immigrants will threaten the system, and which will not? Immigration quotas that discriminate against the people of any nation are public
    testimonies: “Your kind are not what we want.” This is why immigration quotas are matters of foreign relations as well as domestic policy. Discrimination that would not be tolerated by a domestic court system is inherent in the very existence of a national immigration quota system.

    The issue of “them” vs. “us” is an inescapable one in civil affairs. The politics of plunder makes this issue a matter of compulsion. When “they” can vote their way into “our” wallets, “we” begin to reconsider the possibility of finding ways to re- strict the number of “them.” The welfare state inevitably ex- tends to the international scene the domestic political battle over the distribution of the plunder.

    The main problem, however, is not the statist welfare system as such, but the doctrine of the civil covenant.

    https://mises.org/library/sanctuary-society-and-its-enemies-0

  7. don coyote

    On the assumption that Labor will win the next election, or at least the Coalition will lose it, would it not be worthwhile to ensure that the Coalition controls the senate?

    Other trivia:
    Prince Louis Battenberg was First Sea Lord of the British Admiralty at the start of WW1. He was born in Germany, a German citizen and evidently spoke English with a strong accent. He was pushed out for populist reasons. His son later went on to also become First Sea Lord, amongst other things. His grandson also held a prominent position.

    24% of the workforce is employed by governments in Australia.

  8. Haidee

    Jim Allan is pretty good, mostly.
    North Korea making Turnbull a Korean citizen was silly, the first time ’round.

    I’d prefer not to have someone with dual nationality heading up the armed forces (even though we’ve had some duds). Two national identities – NO

  9. A Lurker

    Let me now turn to s.44 of our Constitution, which in part reads ‘Any person who 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 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’.

    What about Senator Lee Rhiannon? Does her allegiance still lie with the Communists?

    What about those who are our elected representatives and are also of the Islamic faith? Where does their allegiance lie – with Australia or the Ummah/Caliphate?

    Then there are those who are supposedly our representatives, yet they tirelessly work towards globalist interests. You could argue that they hold allegiance to foreign interests.

    I think this whole Parliament needs to be dumped and true and patriotic Aussies elected instead.

  10. Barry 1963

    Allan writes well, and I’ll usually read his articles. I’m politically agnostic, so I will agree with him on occasion, and disagree at other times. I agree on his take on s 44. His comparison on Trump v Turnbull is piecemeal: I generally prefer Turnbull. The key point I make here is that in the Trump v Turnbull comparison there is no mention of healthcare. Turnbull has simply maintained the existing system (Trump too it seems). Does Allen accept a single national insurance scheme best? If it’s left to the market, you get insurers going after the young and healthy, and too bad for the ill and old. What if you were born with a chronic condition and couldn’t support yourself? Who would pay for your healthcare? My answer is that we should all ensure no-one is left to suffer untreated because he is indigent. Does Trump believe that it is the individual’s responsibility to secure healthcare and if you can’t afford it, it’s not the state’s duty to help?

  11. Haidee

    No one born with a chronic condition unable to support himself/herself should be left untreated.

    And no one should expect treatment in any hospital, unless that person pays – something.
    That goes for veterans as well.
    Countless people have funds for all manner of things and want free hospital care & those meals better be good (but everyone knows that already)

  12. Megan

    I generally prefer Turnbull.

    His leather jackets and sense of entitlement are such an irresistable drawcard that more than make up for his total lack of…of……of, well, any sort of leadership, competency or effectiveness, really. Oh wait, maybe he can swim?

  13. Pete D

    At last. A kindred spirit. If I hadn’t know otherwise. I would have sworn on a stack of bibles that I had written this piece.
    PS: tough luck if I mentioned the bible and have offended anyone. Live with it sunshine.

  14. Anita

    “The two Greens are stuffed. They themselves were born overseas so they can’t win even under an imposed reasonableness test. Larissa Waters and Scott Ludlam are out.”

    Jim, you made my day. I couldn’t stand either of them superior beings. No, no no, in fact Waters and Ludlam thought they were gods to be worshipped by us poor mortals.

  15. Boambee John

    don coyote at 1315

    Prince Louis Battenberg was First Sea Lord of the British Admiralty at the start of WW1. He was born in Germany, a German citizen and evidently spoke English with a strong accent.

    A British general, Count Gleichen, was son of a German officer (admiral iirc) and a British mother. He commanded a brigade in the Old Contemptibles, and was given command of a New Army division.

    However, he never commanded the division in action because of populist pressure.

  16. Boambee John

    PS, Jackie Fisher, 1st Sea Lord before the war and architect of the Dreadnought revolution, almost certainly had a Sinhalese mother.

  17. dauf

    Kicking ’em all out will achieve at least two things (even better if they have to pay their salaries back). It will stop it ever happening again (which to me is good), but more importantly, it will be the best chance to get rid of some rubbish in a new election.

    Finally, it would be a great opportunity to have a sensible senate voting systems (following the shamble, have a review and constitutional change if need be)…to have first past the post votes for the senate, where you get the same number of votes as there are to be new senators elected in your state at each up-coming election

    done

  18. herodotus

    Unless MPs can prove by their voting record and public statements that they have acted in the best interests of Australia they should be prevented from standing again.

  19. cui bono

    “And I have no doubt that trying to amend or remove s.44 via a s.128 constitutional amendment referendum has zero chance of success. Today’s political class is widely held in contempt, for pretty good reasons, and anything that looks as though it would help that class would get absolutely slaughtered by the voters.”

    Don’t know about that. If a referendum question was presented concurrently with an election it may well pass if it tidied things up, ie. made things dead set simple such as ‘if you are qualified to vote, you may seek a seat in Parliament’.
    Compared to 1901, today’s typical Australian is way more likely to be foreign born or have one or both parents born overseas. Also, ‘native born to native born’ Aussies are more used to the idea of non-natives having a role in our national affairs (Qantas’s Joyce, Matthias Cormann, Westpac’s Kelly). The nativist instinct which I assume drove Section44 is not so strong nowadays across the Australian voting public.
    Constitutional reform could be attained if it were presented as providing more certainty, simplicity and suitability for today’s Australian polity.
    Yet, there is the question as to whether our contemptible political class could execute a straight forward kick through an open goal…….

  20. struth

    Our 1901 constitution clearly states that living in or being a citizen of a commonwealth country made you still eligible to hold office.
    You were not seen as allegiance to a foreign power.

    Then, without referendum, they brought in the Australia act and all the other unconstitutional bull-o.
    Nothing can be changed without a referendum.
    They shot themselves in the foot and deserve everything they get.
    If they’d stuck to the original constitution most wouldn’t have a thing to worry about.

    However, if any politician can be found to have signed up Australia to any deal that requires duties or fines for non compliance with foreign powers like the U.N. they are subservient and “obedient” “adherent” to that foreign power.

    The obedience to the U.N. would see the entire parliament except for a couple Reps disqualified from holding office………..

    You can sign a “treaty” but if Australia can’t walk away without cost, those that signed us up are obedient to a foreign power.

    Section 34 of our constitution must be read in conjunction with 44.

    It was all covered well until they illegally stuffed around with it.

    We need our constitution and saying we don’t is ridiculous.

    The American constitution and the fact that Americans know they have one is arguably the reason why the only country not completely falling to global socialists is the States.

    Brexit hasn’t occurred yet.

    We don’t need people in our parliament screwing the country and then flying off to Barbados.

    No allegiance to foreign powers is for very good reason.

  21. don coyote

    . At the time the Australian Constitution was adopted and passed into law Australians collectively were British subjects. Those who were born in Britain were surely Brits, but those who were born here or in a country other than the United Kingdom were not.

    Got me, whats the difference between a British subject and a Brit?

  22. Tom

    In my opinion this current Coalition government is the worst right-of-centre government in Australian history.

    That’s because it’s not a right-of-centre government, Jim.

  23. Robert Mc

    Our 1901 constitution clearly states that living in or being a citizen of a commonwealth country made you still eligible to hold office.

    No, this is not correct. The Commonwealth referred to in the Australian Constitution in the Commonwealth of Australia. It is not the British Commonwealth.

  24. bobby b

    “And so when you opt for a written constitution you opt for certainty and locked-in rules at the expense of each generation being more or less free to pick the rules it wants.”

    Expense?

    It’s a feature, not a bug.

  25. Robert Mc

    . At the time the Australian Constitution was adopted and passed into law Australians collectively were British subjects. Those who were born in Britain were surely Brits, but those who were born here or in a country other than the United Kingdom were not.

    Got me, whats the difference between a British subject and a Brit?

    A Brit (full term Briton) is a native or inhabitant of Great Britain (ie. England, Scotland and Wales).

    A British subject in 1901 was any native of a British Commonwealth country (Australia, Canada, etc).

  26. mareeS

    I do hope the High Court takes a literal stance on s44, and that leads to an election and a wholesale cleanout of both chambers.

    Knowing the elites and their incestuous mateships, no chance.

  27. tertius

    James Allen is Garrick Professor in Law at UQ and has published widely on constitutional law matter. Robert Mc may also be a distinguished lawyer but I post this excerpt from the National Archives website on the historical position of “Britsh Subjects” and “Australian citizens” in Australia.

    At Federation in 1901, ‘British subject’ was the sole civic status noted in the Australian Constitution. The Australasian Federal Convention of 1897–98 … wanted to preserve British nationality in Australia. An administrative concept of citizenship arose from the need to distinguish between British subjects who were permanent residents and those who were merely visitors. This was necessary for the Commonwealth to exercise its powers over immigration and deportation… this administrative concept was formalised in the Nationality and Citizenship Act 1948. In 1958 the Act was amended so that naturalisation could only be revoked if obtained by fraud. This prevented a naturalised person being stripped of citizenship and deported.

    Throughout the 1960s, Australian citizens were still required to declare their nationality as British. The term ‘Australian nationality’ had no official recognition or meaning until the Act was amended in 1969 and renamed the Citizenship Act. This followed a growing sense of Australian nationalism and the declining importance for Australians of the British Empire. In 1973 the Act was renamed the Australian Citizenship Act. It was not until 1984 that Australian citizens ceased to be British subjects.

    http://http://www.naa.gov.au/collection/fact-sheets/index.aspx

    Is this correct or not?

  28. Pingback: Let’s check those dates | Catallaxy Files

  29. Suburban Boy

    Jim, with respect I have to disagree on two points.

    (1) Office of profit under the Crown: Almost no-one need be deterred from running for election by this provision, as federal and State (and I presume Territory) public servants are given the opportunity to resign from their jobs before nominating for Parliament, and if they lose they can get their old job back as of right. Some non-Public Service Act government positions lack this privilege, but the numbers would be pretty small.

    (2) Timing of the ineligibility criteria: I agree that the time of nomination makes no sense as the point used for determining eligibility for election. The constitutional provision uses the verb “chosen”, and the time of “choosing” is (according to settled law) polling day, not nomination day and not (with respect) the date of the declaration of the poll (which is usually around a week after polling day). There are two exceptions to this. Firstly, in uncontested elections nomination day is the day the candidate is elected (but uncontested elections are now unknown). Secondly, with the introduction of pre-poll voting the timing of the “choosing” is more problematical, but plausibly extends over the period of voting, usually starting about two weeks before polling day and ending at the close of booths on polling day. Even in this scenario the earliest plausible date is somewhat later than nomination day.

  30. Aussieute

    We have a set of rules … don’t like them and want to play the game then suck it up .. go and play another game or change the rules.
    So many excuses and so many words of how this and why that and who can and can’t … read the rule book
    Oh I forgot … this is about politicians … the rules never apply
    And they wonder why they are seen to be a lower form of life than sewer rats
    Clear the deck … clean out both houses and begin again
    No auditable proof you are able to meet the rules … foff you low life scum
    /end rant

  31. Gorky

    Hill used her British passport so it wasn’t a case of she automatically is given the privileges of being a citizen if she wanted it. With even Canavan, some paper work needs to be done for him to be acknowledged as a citizen and he can obtain a passport or other privileges. The whole point was that decisions wouldn’t be made to favour a foreign power where the MP may end up residing but they are anyway. Treaties and foreign aid ensure that. There is the requirement of taking reasonable steps to renounce these privileges so still having access to them is not considered a reason to not be eligible for election. Neither should easy access to those privileges through being granted citizenship through descent.

  32. Tintarella di Luna

    Thanks Professor Allan and thanks to all who have posted comments a very interesting topic. I believe there should be an audit of all sitting MPs given that OPH and the Opposition have done the trust us we’re politicians schtick or failing that Parliament be prorogued until such time as an election is called. Heaven knows we don’t need the mongrels passing any more laws.

Comments are closed.