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.
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.