ANDREW FARRAN. Parliamentary eligibility – did the High Court get it wrong?

The response to the High Court’s decision in the Parliamentarians eligibility case has been largely uncritical and disappointing. While Section 44 (i) of the Constitution allows for a simplistic literal interpretation the Court’s failure to transpose that provision into the social and political context of the present day, and have better regard for its historical antecedents, will create more problems than it has solved and does not sit well with our multicultural and regional realities.

The High Court’s decision in the Federal Parliamentary eligibility case is another blow to the equanimity of our pluralistic system of government. While the relevant section of the Constitution allows for a simplistic literal interpretation the Court’s failure to transpose that provision into the social and political context of the present day, and have better regard for its historical antecedents, will create more problems than it has solved and does not sit well with our multicultural and regional realities.

The media response has shown more glee over the embarrassment caused to Prime Minister Turnbull and the discomfiture caused to Deputy Prime Minister Barnaby Joyce, than the consequences for our demographic wellbeing – quite apart from its political repercussions. Understandably many ordinary people in electorate cannot understand why a person born in this country, with a wife and grandparent born in this country, lived all his life in this country, and simply

because one parent had been born in New Zealand (a country that participated in the drafting of this very Constitution), and migrated to this country many decades ago, could be rendered ineligible for election to Parliament. Can one conceive of the likelihood that the drafters of the Constitution would have thought such a thing, for if they had they would have excluded many of their number from subsequent Parliamentary office?

I am featuring the Barnaby Joyce case because of its absurdity, but the other cases come within this discussion.

The bugbear in the situation is Section 44 (i) which uses the term ‘foreign power’. If the Court had an informed notion of history it would have understood what that meant at that time – certainly not New Zealand nor any other polity of British origin or descent.

The word power itself is significant and should not be divorced from the entity to which it is attached. Can it be attached to any state regardless of its overall attributes? Are all members of the UN ‘powers’? To accept that view diminishes the notion of power. Surely the term power should mean just that, real power, and qualify the term in relation to the entity to which an attachment is alleged.

In 1901 at a time of Empire and imperialism the term British was embracive within the Dominions and excluded foreign powers. Many a subject derived his or her British character regardless of where they travelled or settled. This distinguished them from matters foreign. Indeed, the distinction followed by the Court between a natural born citizen and naturalised citizen required a further distinction within the latter as in the late 1990s subjects born in the other Dominions or in Britain did not need to be ‘naturalised’. This might have been clear from the Colonial Office letters to the Constitutional Convention but the Court did not wish to look into that. Moreover the Colonial Office would have had a clear notion of what constituted a ‘foreign power’.

Thus, when the first Australian Parliament sat in Melbourne it was constituted by members whose connection with their birth or origins had a strong immigration background and the notion of Australian citizenship was as oblique as the notion of foreign powers – the latter being the likes of France, Germany, Russian, not British nationals who by definition would not have been precluded.

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

Statutory construction does allow for regard to be had to the origins of a provision to garner its meaning in its original context. If a literal interpretation would be disruptive or even absurd in the present context, and harmful for stable government, then to proceed on that basis would not serve the common interest.

This is what the Court did. The Court may have been minded that the common interest would be better served in future by putting a broad rule across the issue by removing all ambiguity. However it did not explore the statutory records on the drafting as there were little of these of consequence in relation to this section and questions raised were not pursued as the drafters knew what the words ‘foreign power’ were intended to mean. It has long been the belief that being born in Australia or by taking the oath of Australian citizenship one’s first and foremost allegiance is to the Commonwealth of Australia, unless overtly disclosed to be otherwise.

As it is, with so many issues of origin being compounded, the determination of a person’s eligibility for Parliament will be even more difficult unless legislation is enacted to eliminate the question of a person’s citizenship status being determined overseas. The Court’s view is that if objectively speaking a person could have a claim of citizenship or citizenship privileges from somewhere else in the world the onus is on them to be aware of it and, if seeking a seat in Parliament, to go out of their way to denounce it. This creates a situation whereby doubt on their eligibility can be raised from exogenous factors about which they may know nothing and should not be required or expected to explore.

Otherwise their fate could be determined, and seemingly will be, and unknowingly, overseas.

Yet in one of these cases the Court questioned whether a person was an Italian citizen and concluded, for its part, that it was unlikely because of how citizenship might be assessed in that country. In any case, it is not the business of an Australian court to decide this in a matter of Constitutional interpretation. What is relevant is what is done here unless Australian Courts have moved away from the existing position that international and foreign law are not applied here unless legislated to do so.

In the only relevant previous case of Sykes v. Cleary (1992) – following Prime Minister Hawke’s resignation from Parliament and the by-election in Wills to replace him – a case primarily concerned with an issue of ‘office of profit under the Crown’ and not with the question of attachments, duties, etc. to foreign powers, two dissenting justices, Deane J and Gaudron J addressed this point in some detail even though it was not directly relevant, and adverted to the nonsense that a literal application of clause would cause. The other judges did not follow them in this regard but the dissenting judgments could have opened the way to a fresh approach to this section.

In the present cases the High Court has conflated two separate considerations – the notion of a foreign power per se and the derivative nature of a former British subject by transposing that concept of derivation to ancestry of a non-British subject. The problem then is where to draw the line? The British connection might pass without more ado but the non-British connection would vary according to whether or not that might be with a ‘foreign power’. This is a matter that should be covered by the Nationality and Citizen Act, on the basis of which eligibility could be defined. That Act should prescribe the oath to be taken by Australian born or naturalised persons when being seated in the Parliament.

It could allow for dual-citizenship in specific cases, such as for persons of British ancestry and for others as befits the policy. It should also include renunciation provisions so that those in any doubt may by way of the oath renounce any external connection they no longer wish to retain.

With regard to the effectiveness of a renunciation of a foreign citizenship, under statutory oath, Dean J in the Sykes v. Cleary case stated 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.

If the Court is determined to maintain its 2017 position on this sub-section rather than that assumed in 1901, and if a statutory change will not suffice, then a referendum to make a Constitutional amendment will be necessary. While this has had its difficulties in the past it would not seem too much to ask of the major parties that they should jointly submit an agreed proposal to the people to avoid future disruption as experienced as will most certainly occur if these matters are not resolved. This would surely be in the national interest.

The concept of dual-citizenship in itself is not alien to the purity of Australian nationalism. It has positive uses in a globalised world which should not be overlooked or unnecessarily negated. Apart from the thousands attracted to these shores from countries without a British background, there are those Australians whose opportunity to compete on a level playing field, as for example in the European Union, has been facilitated by their dual-citizenship. As a Constitutional issue however its retention for a Parliamentarian should be a matter for a referendum if other alternatives fall short.

Finally, it is difficult to understand how Australia with a British monarch can regard other persons of similar ancestral background as being foreign. For the purposes of eligibility to sit in the Federal Parliament, Australian citizenship should, as argued, be sufficient. A Republican structure would in due course settle that emphatically.

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

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5 Responses to ANDREW FARRAN. Parliamentary eligibility – did the High Court get it wrong?

  1. Julian says:

    A nice argument Andrew and one that cannot easily be dismissed.
    I think however that the last word will probably go to the wit who noted that by and large Australian conservatives have always favoured having “black letter” lawyers in the High Court (and elsewhere). Well, well, guess what?

  2. Jaquix says:

    I think the High Court got it right. It’s not for the High Court to change the constitution, but interpret what it says. Fact is the pollies caught up in this just did not do their homework, or chose to ignore it. Not a good look for those putting themselves up to be the lawmakers of the country. Good to debate whole issue. Other provisions that need looking at include that of not being “employed by the Commonwealth” at time of nomination. This would deter those in secure teaching jobs from nominating, when they may not be elected. Meantime, govt could legislate that candidates must provide to AEC parent and grandparent birthplace and year, and renunciations documents where any not Australian born.

  3. Peter Lynch says:

    As I see it, the wording of Section 44 is clear cut. Moreover, the Founding Fathers didn’t let it slip into the constitution by accident. They debated it and made a clear decision. Whether we like it or not, Section 44 exists and can’t be ignored. Sure the Founding Fathers did not consider Britain a foreign power and it wasn’t in 1901. But it has since become one. The High Court can consider the interpretation of the words at the margins but they cannot claim that it means the opposite of what it says. They can decide that when it says black this includes charcoal, but they can’t say that when it says black it means white. To do so would be usurping the role of parliament. Section 44 is just one of many flaws in the constitution. There is a mechanism for amending it and that is by a referendum.

  4. J Knight says:

    “…Court’s failure to transpose that provision into the social and political context of the present day, and have better regard for its historical antecedents…”

    Well if only that were the case with the 2013 Marriage case!

    S128 is there for a reason and not to be by-passed by parliament or by post!

    Fix the provision by the right method and frankly, dual citizenship is like polygamy – I bet my wife wouldnt be impressed if I had a second international partner!

  5. Andrew is correct. It was a lamentable performance by the High Court and by the media and the political establishment. Malcolm Turnbull is right to blow the whistle on a witch-hunt.

    When this nonsense started I wrote to colleagues in the Labor Party asking them to lay off. If Labor wins office because the Liberals lose their majority through the citizenship issue the new government will be in the same position as the Liberals under Fraser, Withers and Sir John Kerr — forming a government on the basis of a dirty trick.

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