ANDREW FARRAN. Parliamentary eligibility – did the High Court get it wrong? (Part 2)

Prime Minister Turnbull now asserts that the onus is on individual Parliamentarians to prove their non-dual citizenship status (a status that previously did not disqualify). How can the onus of proof be put on them when that determination may be in the hands of an external authority?

What can be done when one arm of the ‘division of powers’ under our Constitution gets ahead of the other, particularly when it is a Court from which there can be no appeal (the Privy Council having been shut out)?

The High Court’s decision on the eligibility of Federal Parliamentarians is surely one such over reach. We are not yet a Republic. It is remarkable also for being unanimous on such a potentially complex and divisive matter. That must have been decided as a matter of policy, not practice.

No Federal Act has declared the United Kingdom and its British Crown to be a ‘foreign power’. Had that been done we would have known about it as part of the democratic process. Various pieces of legislation have clarified matters of nationality and citizenship, whether acquired by natural birth or naturalization. All of these exist under the Crown, previously and generally as British subjects, and now for purposes of citizenship as a matter of domestic law.

Nor is there any doubt about Australia’s national sovereignty, acknowledged since the Statute of Westminster was adopted in 1941 and further as an exercise of the Prerogative and the Foreign Affairs power through treaties, including membership of the United  Nations.

But these did not per se render all our treaty partners or co-members of the United Nations as foreign. A good number were not. Hence we treat members of the Commonwealth, including the UK and former British colonies, differently from ‘foreigners’ with whom diplomatically we exchange High Commissions and High Commissioners, not  Embassies and Ambassadors. An Ambassador represents a Head of State. High Commissioners represent, in our case, the “Governor-General of the Commonwealth of Australia being the representative in Australia of Her Majesty the Queen” – hardly a foreign power.

There is no doubt that those who have been caught up in this fiasco have, as it were, been ambushed, in the sense that the meaning of ‘foreign powers’ has changed since it was drafted in the Constitution. It has changed because the Constitution Founders clearly did not intend to exclude themselves from the Parliament not only when it convened for the first time but for the decades ahead.

The countries of birth of the 111 members of the First Commonwealth Parliament were: Australia 59, England 25, Scotland 16, Ireland 8, Wales 1, USA 1, and Chile 1. That in itself would raise the question of what the drafters of the Constitution meant by the phrase ‘foreign powers’.

Over the next decades Commonwealth practice was to accept the eligibility of all and any who were British subjects or Australian citizens (when that concept was legislated for), natural born or naturalized.

How does it come about that a Court can change the clear intent of the Founders in this regard and subsequent practice, with clear implications in this case for Australia’s diplomatic relations? Was this creative legalism?

Perhaps the Court was looking ahead to when Australia might be a Republic. But meanwhile the British origins and continuities in our legal system and past Constitutional practice have been ignored in spite of the fact that High Court judges themselves are required to acknowledge allegiance to the Crown.  It shouldn’t matter whether it is “the Crown in right of” here or elsewhere. The British heritage is a fact either way and is not foreign.

Rather than making the leap they did the Court might have drawn attention to the ambiguity of the words ‘foreign powers’ when viewed in context and upheld the status quo at least for those of British origin, and gone on to advise the Parliament to resolve and clarify the matter before the next round of elections by way of revisions to the Nationality and Citizenship  Act.

Prime Minister Turnbull has now asserted that the onus is on individual Parliamentarians to prove their non-dual citizenship status. But how can the onus of proof be put on them when it may not be in their hands to determine their status but rather it is in the hands of some external authority? Hardly a domestic procedure.

As noted in my earlier piece on 3rd November, the avenue of renouncing or denouncing a dual- citizenship to settle the question once and for all –  for those for whom it is or could be an issue – would be legally effective if done as expressed by Mr Justice Dean in the earlier Cleary case, when he remarked  with  regard to the effectiveness of a renunciation of a foreign citizenship under statutory oath that such an oath in citizenship proceedings was not only a declaration by the naturalised person but was also “a clear representation by the Australian Government and people” that, for the purposes of Australian law, there has been a “final severing” of all other ties of nationality and a compliance with all requirements to become “a full and equal member of this nation”. It would be inconsistent with that oath, he stated, for the new citizen to then apply to the foreign country to renounce its citizenship, thereby asserting the continuing existence of that citizenship and, as a citizen of that country, submitting to the discretion of its responsible (foreign) minister.

What to do? Either the Parliament should amend the Nationality and Citizenship Act to define Australian citizenship as excluding any other, or define and clarify what is meant what by the words “foreign power” and give status to that fact.

Or Parliament could put the issue beyond doubt by holding a Referendum to amend and clarify Section 44 (i) or delete it altogether.

Then we might also decide whether “dual citizenship” is a good or bad thing from a national perspective.

Andrew Farran is a former diplomat, trade adviser, and academic in public and international law

 

 

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6 Responses to ANDREW FARRAN. Parliamentary eligibility – did the High Court get it wrong? (Part 2)

  1. Andrew Farran says:

    Iain

    I think I knew that. The two courts are one and the same other than in name. A bit of irony.

  2. Iain Stewart says:

    There is no “Nationality and Citizenship Act”. That was the title of a federal statute of 1948, which in 1973 was renamed the Australian Citizenship Act. That Act has been entirely superseded by the Australian Citizenship Act 2007.

    The Citizenship Seven decision was made by the High Court sitting as the federal Court of Disputed Returns. There is no avenue of appeal.

  3. John Kotsopoulos says:

    For heavens sake end this lawyers picnic. Why DIDN’T the High Court the parliamentary debates and why should a foreign country be able to hamstring our political process with legislation of its own and in particular legislation in some cases has had retroactive effect. Show some balls Mr Turnbull end this farce and let our Parliament prevail

  4. Andrew Farran says:

    It is worth noting the article in The Australian (today, 11.11.17, page 5) about the Perth barrister, John Cameron, who raised the question several times before the High Court. In doing so in 2013 this is how his argument was treated:

    http://www.theaustralian.com.au/national-affairs/barrister-who-toppled-scott-ludlam-on-scalps-hes-claimed/news-story/08c6aee2d920a602922fe31df8483ef2

    …… In 2013, with Abbott as opposition leader, Gillard announced elections would be held in September. Having exhausted all other avenues — and given the Home Office email was technically inadmissable in court — Cameron ­applied to the High Court for an order directing Gillard and Abbott to produce their RN1 forms.

    In written submissions, Cam­eron claimed: “The electors could be faced with a choice for prime minister, between two candidates neither of whom may be capable under section 44 of the Constitution … of being chosen or sitting as a member of the House of Representatives.”

    Judge Kenneth Hayne dismissed his request as “frivolous, vexatious, and an abuse of process”. That finding was confirmed by Susan Kiefel, now Chief Justice, and judge Patrick Keane…..”

    The High Court seems not to explained its turn of face in the recent case. Hardly exemplary for an appellate court, let alone a final court of appeal – or can it be suggested that there might be an appal from the Court of Disputed Returns to the High Court and if so how might that be done!

    Sent from my iPhone

  5. Julian says:

    Thank you Andrew for a further excellent summary.

    You say: “Rather than making the leap they did the Court might have drawn attention to the ambiguity of the words ‘foreign powers’ when viewed in context and upheld the status quo at least for those of British origin, and gone on to advise the Parliament to resolve and clarify the matter before the next round of elections by way of revisions to the Nationality and Citizenship Act.”

    I believe this should have been the Courts’ approach – being eminently sensible and workable. Unfortunately the Court decided to get a bit creative, and this I believe has led to the present impasse from which the PM wishes to absolve himself by asking MP’s to solve the problem by themselves – presumably without recourse to any other authority.

    So, apart from the questionable legality of this approach, what happens if an MP signs a Stat Dec declaring themselves to be an Australian citizen by, say, the fact of birth within Australia, or simply declares that citizenship to be a fact – with no further evidence adduced, what then? Would Sec. 44 enable or allow a Judge of the High Court to examine the matter, to attempt as it were, to go behind the Member’s Declaration? As you correctly state Andrew, once the Court decides this or any other matter, there is no appeal.

    I think your suggestions point the way forward, but given the chequered history of referenda in Australia, I would favour amending the Nationality and Citizenship Act (as you say) “…to define Australian citizenship as excluding any other, or define and clarify what is meant what by the words “foreign power” and give status to that fact.” All in all a sensible and workable approach and one which ought to be quickly done.

  6. John Battye says:

    This conundrum recently created by the High Court in respect to S44(i) is a perfect example of giving a multicultural “black-letter” law interpretation to the word “foreign”. Had the first High Court Bench given this anti-British interpretation, they would have been impeached for high treason. As Andrew rightly points out, nothing has changed since 1901 in respect to the definition of “foreign”.

    What we need is a High Court which gives a “black-letter” interpretation in harmony with the expectations of the Constitutional Debates 1891 to 1900 inclusive. One which defines all those of British Ancestry owing sole allegiance to the British Crown as “family”, not “foreign”. These people may be born in a Dominion as defined by the Statute of Westminster in 1931, or be of British descent on British Service in the wider British Empire as either a Public Servant or as a Christian Missionary.

    This interpretation persisted in Australia until 1972 with the election of Whitlam. Both Whitlam & Grassby have done severe Constitutional damage to Australia – & this damage must be reversed.

    To be charitable, this High Court Judgment is radically incomplete, and the Full Bench needs to re-sit and complete their Judgment along the lines above in order to survive impeachment.

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