Section Double Death of the Australian Constitution

In Chinese language (Mandarin and Cantonese apparently), the number ‘4’ is the same word as ‘death’.  So much so that the number 4 is considered bad luck and that:

some buildings in East Asia omit floors and room numbers containing 4, similar to the Western practice of some buildings not having a 13th floor.

Some Chinese refer to the number ’44’ as double death because it is doubly bad luck.  In Korean, the number ’44’ sounds like ‘died and deceased’.

It is thus rather ironic that the section of the Australian Constitution that is causing great angst for our political elite is Section 44 or perhaps as should better be known, Section Double Death.

Now Spartacus is para-physically unable to be a lawyer because he can see his reflection in a mirror.  But as the simple slave that he is, when he reads the Australian Constitution, he reads it as plaintext; and Section 44 of the Australian Constitution says:

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: 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.

For any lawyers out there, can they please explain the basis of the arguments presented by 7 applicants to the High Court that they are not in breach of Section 44(i.).  Particularly, as being a citizen of a foreign power seems a pretty clearly defined and binary condition.  You either are or are not a citizen of a foreign power.  How can there be something in between?

Are these applicants asking the High Court to make up law?  You know, the High Court which is made up of 7 un-elected Justices who:

cannot be removed except by the Governor-General in Council on an address from both Houses of Parliament in the same session, praying for such removal on the grounds of proved misbehaviour or incapacity.

Much like the Implied Freedom of Political Communication that was apparently found by an earlier High Court, are these applicants asking the High Court to find an Implied Freedom to Selectively Apply The Constitution?

The final determination of the High Court will be interesting to see, but if this is about the Government and the 7 applicants trying to play chicken with the High Court, I hope the applicants loose.  ISHO (In Spartacus’ Humble Opinion), it would be better for a government to fall than for the Constitution to be corrupted.

Follow I Am Spartacus on Twitter at @Ey_am_Spartacus

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25 Responses to Section Double Death of the Australian Constitution

  1. Confused Old Misfit

    It all depends on “what the meaning of the word ‘is’ is!”

  2. anonandon

    it would be better for a government to fall than for the Constitution to be corrupted.

    Agreed. It would be a terrible precedent. Just because they don’t like it doesn’t mean they can ignore it.

  3. Motelier

    I am still waiting for the Wong chap to give proof of his renouncing Malaysian citizenship.

    Oh wait a minute. Labor checks each candidate. Sure.

  4. Pedro the Ignorant

    Dirty Harry’s .44 Magnum comes to mind.

    “Do you feel lucky, punk?”

  5. John64

    “The ALP has a rigorous vetting procedure.”

    I want this to be the political epitaph of Tits McPeanuthead, That Wong Chap, the former Mayor of Canberra and Mind Ma Tea amongst others.

  6. New Zealand is without a doubt foreign. About as foreign as you can get without leaving the planet.
    But you could hardly call it a power. Being rude to visiting Israeli diplomats in transit is about the extent of it. Even the birds fly upside down because they can’t find anything worth shiting on.

  7. Alex Davidson

    I’m with those who look forward to a total collapse of the political class. We no longer have the rule of law – instead it’s arbitrary rule by men, women, and assorted other made-up genders. Just the other night I heard the head of the EPA in NSW telling us they don’t enforce certain laws, and many parliamentarians seem to think they are exempt as well. Meanwhile those without the right connections get hounded by their local councils or state governments over the most trivial and nit-picking issues, because law. No exemptions for you my lad.

    We need a new constitution. One that sets out to protect citizens and their property from the excesses of government, not one like we have now that is more about how the political class divvy up the power to plunder the rest of us amongst themselves.

  8. Stimpson J. Cat

    Who gives a f$ck what Chinese or Korean people who are not citizens of Australia think about the number 4 or 44 or section 44 of our constitution?
    They don’t get a Goddamn vote anyway.
    Jesus F$cking Christ.
    Sh$te segue try harder.

  9. John64

    An update on the ALP’s “rigorous vetting procedure”:

    LABOR senator Katy Gallagher is likely an Ecuadorean citizen, according to a senior legal counsel to the country’s former president.

    In a legal memo, Hernan Perez Loose wrote there was “no doubt” that Senator Gallagher was an Ecuadorean national if information on the public record was correct.

    The memo, prepared for The New Daily, concluded that if Senator Gallagher was born in Australia in 1970 and her mother was born in Ecuador in 1943, then she would be a citizen because the country’s current constitution was retrospective.

    The Daily Telegraph revealed on Tuesday that Senator Gallagher, one of Labor’s attack dogs on the citizenship scandal besetting the Turnbull government, may be an Ecuadorean citizen.

    That was based on her mother’s arrival card to Australia, which shows she was born in Ecuador and because the country’s constitution states nationality is obtained by both or naturalisation and shall not be forfeited by acquiring another nationality.

    Constitutional experts George Williams and Mary Crock have both suggested there is are questions for the High Court to consider regarding Senator Gallagher.

    But Labor maintains the Ecuadorean constitution is not retrospective — and that would mean Senator Gallagher was never a citizen.

    These revelations follow the referral of a number of parliamentarians including Deputy Prime Minister Barnaby Joyce and former resources minister Matt Canavan to the High Court.

    The Australian Constitution does not allow dual citizens to sit in Parliament.

    Dr Perez, who wrote the memo released today, was legal counsel to the president of Ecuador from 1982 to 1984, and to the country’s Attorney-General in 1980.

    “From the background information provided to us, we cannot conclude if the person who was born in Australia acquired the Ecuadorean nationality by birth,” Dr Perez wrote.

    “However, if one of the requisites mentioned above is met, which presumably is the case since the person’s mother is Ecuadorean by birth, then with no doubt we can conclude that this person did in fact acquire the Ecuadorean nationality by birth.”

  10. Just Interested

    The Government’s argument appears to be citizenship is a ‘vibe thing’; you have to feel it to have the foreign citizenship in the constitutional sense.

    Interestingly, in the High Court case of Webster, old Garfield Barwick found that the ‘direct and pecuniary interest’ paragraph of section 44 was effectively a ‘vibe’ thing – effectively a government contract had to provide a meaningful and continuous supply of work (and dough) to be a relevant pecuniary interest.

    However, this was the very approach thrown out by the Day High Court, finding that the phrase had to be construed strictly because it was an anti-corruption provision.

    What I find interesting is the Sykes v.Cleary case (heard by the Mason High Court, which was far more adventurous than the current Court) read in the requirement of ‘taking reasonable steps’ to renounce in 44(i), drawn from international principals.

    Will they again literally interpret the text, on the ground that s.44 is designed to provide strict eligibility criteria for election – in this case, to restrict parliamentary eligibility to ridgy didge true blue Aussies, or fold to save a parliamentary bloodbath?

  11. Diogenes

    Sparty,
    this can be a real minefield. You ask how can you not know. Seriously – the AEC needs an AhnenerbeAmt to work up a full genioligy

    On the basis of some information I gave my brother about dad actually legally being a f’ing Romanian instead of Hungarian, which every piece of paper we have says , and which a general enquiries to the Embassy here (me) & Singapore(him) confirmed, he has hired a lawyer from near dads village to search for the parish records for birth records,

    The paperwork his lawyer uncovered stated that our paternal grandmother was born in Riga before 1900, not Koenigsberg as family lore had it, and had a reference to them being married in Russia (which we already knew, but now we have a place name).

    As best as we can tell from internet searches we are Lithuanian and Russian as well as Romanian and Iranian on the basis of our GRANDPARENTS place of birth.

  12. BoyfromTottenham

    There seem to be citizenship requirements in the Constitution regarding High Court Judges. So we could have a situation where a judge with dual citizenship gets to decide on the eligibility of a Member of the House or a Senator to be a member or Senator due to his being or having been a dual citizen. What fun.

  13. BoyfromTottenham

    Opps – Should have said ‘There seem to be NO citizenship requirements… ‘.

  14. Stimpson J. Cat
    #2485145, posted on September 1, 2017 at 11:40 am

    Who gives a f$ck what Chinese or Korean people who are not citizens of Australia think about the number 4 or 44 or section 44 of our constitution?
    They don’t get a Goddamn vote anyway.
    Jesus F$cking Christ.
    Sh$te segue try harder.

    Barack Obama was POTUS No. 44 hmmmmm?????
    (Cue twilight zone music)

  15. Chris

    Stimpson J. Cat
    #2485145, posted on September 1, 2017 at 11:40 am
    Who gives a f$ck

    Well said Stimpy.

  16. gbees

    Section 44(ii) ” Is attainted of treason …” seems quite relevant to those politicians who have propagated the catastrophic anthropogenic global warming fraud. I await their imprisonment.

  17. gbees

    Stimpson J. Cat
    #2485145, posted on September 1, 2017 at 11:40 am
    Barack Obama was POTUS No. 44 hmmmmm?????

    Maybe 44 is the mark of the beast not ‘666’.

  18. Ray

    In Sykes v Cleary, the High Court provided guidelines ad to how Section 44(i) could be interpreted. The matter of who was disqualified under Section 44(i) was a matter “to be determined according to the law of the foreign State concerned.”
    However, the High Court declined to give unqualified effect to a foreign state in this regard, to do so “might well result in the disqualification of Australian citizens on whom there was imposed involuntarily by operation of foreign law a continuing foreign nationality, notwithstanding that they had taken reasonable steps to renounce that foreign nationality.” In other words, where a foreign state makes provision for a voluntary renunciation of dual citizenship, then it is reasonable to expect that candidates for election to the Parliament make themselves aware of those provisions and thus there is a requirement to renounce. Thus, members of Parliament who are born overseas and fail to renounce their dual citizenship in accordance with the rules of a foreign state are disqualified but only if the foreign state allows them to so renounce.
    The question, which is in doubt with regard to the current crop of incompetents who have run foul of Section 44(i) is whether ignorance of the laws of a foreign state are sufficient to satisfy the “reasonable” interpretation which the High Court has placed on Section 44(i). In this regard the Court noted that what “is reasonable will turn on the situation of the individual, the requirements of the foreign law and the extent of the connexion (sic) between the individual and the foreign State of which he or she is alleged to be a subject or citizen. ” In a minority judgement, Dean J went further to suggest that the effect of the construction of Section 44(i) “is that an Australian-born citizen is not disqualified by reason of the second limb of s. 44(i) unless he or she has established, asserted, accepted, or acquiesced in, the relevant relationship with the foreign power.”
    Thus the issue is whether a majority of the Court will decide that being born in Australia, provided there is no establishment, assertion, acceptance, or acquiesce in the relevant relationship with the foreign power is sufficient grounds based upon the situation of the individual. As a result, the High Court does not need to make up law to resolve the current problems with Section 44(i) , for all the necessary justification is already on record. All they need to do is to give greater certainty to what is “reasonable”.

  19. Ray

    Kate Gallagher has been a little too cute in defense of her position with regard to Section 44(i).
    Whilst it is true to say that the current constitution of Ecuador does not confer dual nationality upon her mother or herself, we should not forget that the Ecuador constitution of 1929 which applied when her mother was born in that country does confer Ecuadorian nationality on the mother and, if she failed to renounce that citizenship prior to the birth, then Gallagher was born with dual nationality as well.
    In other, words, Kate Gallagher is in exactly the same position as Barnaby Joyce unless she can prove that her mother renounced her Ecuadorian nationality.

  20. Ray

    If the High Court rules that “an Australian-born citizen is not disqualified by reason of the second limb of s. 44(i) unless he or she has established, asserted, accepted, or acquiesced in, the relevant relationship with the foreign power”, then Kate Gallagher and Barnaby Joyce should be safe.
    However, the same cannot be said for Matt Canavan. We know the Canavan family held a conference prior to his nomination for the Senate in which they discussed registration as foreign born Italians. At that meeting, Canavan claims that he declined the offer and that his mother proceeded with the registration behind his back. The problem is that the application we are speaking of was not and application for Italian citizenship, it was for registration as a foreign born Italian. In this case, the Italian citizenship was conferred at birth and no application was required to give effect to that citizenship.
    If the Canavan family held a conference to discuss their Italian citizenship then we must conclude that he was aware of that citizenship prior to lodging his nomination for the Senate and that he accepted it for he made no effort to renounce. Thus being born in Australia is possibly not sufficient to protect Canavan from disqualification under Section 44(i).

  21. OldOzzie

    Baa Humbug
    #2485173, posted on September 1, 2017 at 11:53 am
    Stimpson J. Cat
    #2485145, posted on September 1, 2017 at 11:40 am

    Who gives a f$ck what Chinese or Korean people who are not citizens of Australia think about the number 4 or 44 or section 44 of our constitution?
    They don’t get a Goddamn vote anyway.
    Jesus F$cking Christ.
    Sh$te segue try harder.

    Barack Obama was POTUS No. 44 hmmmmm?????
    (Cue twilight zone music)

    Lewis Hamilton F1 Car N0. 44

    NSW licence plate No. 4 sold for record $2.45 million to Chinese billionaire

    facebook
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    The original NSW licence plate No. 4 sold under the hammer on Monday night for $2.45 million, setting an Australian record.

    Chinese-Australian wine collector and sex toy magnate Peter Tseng bought the rare collector’s item before a crowd of 300 people at the 2017 Shannons Sydney Winter Classic Auction, who applauded when the hammer fell on his purchase.

    Mr Tseng, who arrived in his red Ferrari bearing the No. 2 licence plate, is a renowned number plate collector, owning the Hong Kong-registered No. 1 number plate and a personalised licence plate “ONE” registered to his 1969 Mercedes in Sydney.

  22. Helen

    In 1901 New Zealanders and Canadians were not citizens of or held allegiance to a foreign power, they and we were all British subjects. So it appears that the Constitution was long ago corrupted by subsequent legislation in these countries. We should have had a referendum on the Australia Act at least since this and the other legislation effectively changed the Constitution.

    Disclaimer: It appears that I also am a dual citizen since my father was born in New Zealand. I was aware that I could apply to NZ for citizenship, but no idea that the option to apply automatically made me a dual citizen under the Australian Constitution. There must be millions of us who were unaware that we were unknowingly dual citizens.

  23. Tel

    You either are or are not a citizen of a foreign power. How can there be something in between?

    Of course there’s something in between. If someone is potentially entitled to become a citizen, but has never applied for it, then they are not currently a citizen, but it’s hard to know exactly what this person might be able to get if they ever did apply.

  24. Mr Black

    Power hungry fascists in waiting don’t want to be held accountable by the law? Let me find my shocked face.

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