RICHARD BUTLER. Off With Their Heads

Article 44 of our Constitution defining who may or may not run for Parliament needs authoritative interpretation because it’s hopelessly out of touch with today’s Australia. This need not augur a grotesque Hansonite event reiterating that non-Christian barbarians are at the door. 

Paul Keating was very angry with the Senate when he described it as an “unrepresentative swill”. Whatever the veracity of Keating’s assessment might be, at least we’ve learned, in recent days that section 44 of our Constitution seeks to ensure that our Senators are untainted by any formal foreign association.

Two Senators have resigned because they are dual nationals, indeed with states that share our Queen as their Head of State, and a third is half way out the Senate door, for the same reason. But, he’s hoping to clear himself of the stain of Italian citizenship, by claiming that his sainted mama lodged the paperwork with the Italians, through which he would obtain the Italian part of his heritage, but he didn’t sign it.

Ramesh Thakur has analysed with clarity this absurd situation with respect to Australians who hold dual citizenship with another country but want to sit in the Australian parliament ( Pearls and Irritations, July 26th), but its laughable aspects demand illumination.

First, of all the constitutional matters needing revision here, it is surely the system of voting which produces not all but too many of the Senators who have populated Keating’s swill. The list is colourful, not so short and, sometimes, not particularly funny. Clive Palmer, the shooters party, the sex party, the motorists, the cyclists for example. At the last election, there were 42 other parties/entities on the ballot paper. None came within cooee of winning even 1 seat.

The gap between those candidates and the mainstream ones, a good number of whom have done a fair days work in the Senate, many serving with distinction as Ministers, is massive.

None of this would appear to be the result of the ethno/cultural purity Article 44 seems designed to ensure.

No discussion of the state of affairs which has, from time to time attended membership of the Senate  would be complete without recalling the curious incident of the membership, in 1975, of Albert Field. He did not go through the process of being elected. A vacancy occurred in Queensland as the result of the death of Labor Senator Bert Millner. Premier Joh Bjelke- Peterson, broke convention and rejected Labor’s nominee and appointed Field, arguing that Field was Labor. He had been a member of the ALP in the past but had resigned from it. Lest there be any doubt about Field’s political colour, he stated that, in Canberra, he would never support the Whitlam government.

Plainly Petersen was rorting the convention designed to maintain the balance in the Senate, determined at an election, and it had major consequences. Field’s presence in the seat established the opposition’s number for the blocking of supply and what was widely regarded as a constitutional crisis.

Many will remember Field’s fitness for inclusion in the swill when he explained in an early interview, that he was astonished, on his arrival in Canberra, that they had given him an office and it included a telephone on which he could call Queensland, by direct dialing, free of charge.

It is dreadfully difficult to know, but surely not beyond our wit to work out, what to do about our Senate voting and indeed pre-selection system, without violating basic principles of popular electoral democracy. Today, it  produces a ballot paper at least a metre long making it difficult for very many voters to distinguish between candidates who might be able to be elected and then make a useful contribution to the nation’s affairs and, those who would be better accommodated at the Mad Hatter’s Tea Party.

None of what I have just described was the result of the “protections” afforded by Article 44, although one could be forgiven for lamenting the fact that Joh didn’t retain the citizenship of his birth: New Zealand or that of his parents’ origin: Denmark.

Secondly, it appears that we alone amongst obviously comparable countries have a test of allegiance to the nation such as that in paragraph 44. Obviously, the requirement that those seeking election to the Australian Parliament should be Australians is beyond reproach. But, the idea that dual citizenship automatically negates in such people their allegiance to Australia is a deeply hostile notion, especially now, in a country in which almost half of its citizens have themselves or have in their family an origin outside Australia, and/or the now defunct British Empire.

As those truly sensitive to the facts of the history of our land point out; some 97% of Australians came from overseas, or as Bob Hawke, in his special style, put it in the context of the 2010 Federal election: “we’re all bloody boat people”

Surely the fact is this. The terms of Article 44 are hopelessly out of touch with the reality of Australia today and far worse, hold the prospect of defining two sharply different categories of Australians: those who can be trusted with the shaping of its affairs through the Parliament, and those who cannot.

Pauline Hanson continues to proselityse a racist, ethnocentric and confessional view of what actually constitutes an Australian, and her stance is being given some encouragement by the Turnbull government, or at least, it is seeking to benefit from it, politically. But, my understanding, at least until now, is that Australian citizenship whether acquired by birth in Australia or through naturalization, imposes upon citizens the obligation to vote, without any distinction being drawn based on a persons prior cultural or other connections. Why doesn’t the same approach apply to an individual’s decision to seek election to parliament?

Thirdly, Article 44 needs to be erased, amended, or authoritatively reinterpreted.

The first two options would require amendment of the Constitution. Apart from the fact that amending our Constitution is always fraught and has mostly failed, in this instance such a proposal would conceivably encourage a grotesque Hansonist event, in which the proposal would be represented as a step towards surrendering our parliament to the non-Christian barbarians; a new Decline and Fall.

In spite of its economical language, article 44 is rich in xenophobic foreboding. It speaks variously of: “allegiance”, “obedience”, “adherence”… to a foreign power”. The obvious way ahead would be for a case to be put to the High Court in which, hopefully it would find that the terms of Article 44 are not intended, as such, to prevent an Australian citizen from running for parliament and that dual nationality is not seen, intrinsically, as calling into question the allegiance of a citizen.

The question of eligibility for election to the Australian national parliament is a basic and important one. Our Constitution is wildly outdated on it and this should be able to be fixed, without too much angst, political or legal.

Finally, perhaps those who have doubts about the importance of any of this might be encouraged to think again when they reflect upon the grossest of anomalies: our Head of State, Her Majesty Elizabeth, Queen of Australia, is a national of the United Kingdom of Great Britain and Northern Ireland. I guess we can assume she is a dual national with Australia, but then she must also be the same with respect to the other16 countries of which she is the Head of State.

Tony Abbott, who I think is well cast as the White Rabbit in this iteration of the Mad Hatters’ Tea Party: “I’m late, I’m late for a very important date”, tried to banish the fog of ambiguity by making HMQ’s husband a Knight in the Order of Australia, a rank of chivalry that had been abolished on the ground that Australia, as a modern country, had no use for Knights. Abbott’s error is compounded. Did he not know that Prince Philip was born in Corfu, Greece, and inter alia had Russian ancestors.? Now, there’s a challenge to allegiance.

Off with his head!

Richard Butler AC   formerly Australian Ambassador to the United Nations, Governor of Tasmania.



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2 Responses to RICHARD BUTLER. Off With Their Heads

  1. Malcolm says:

    Is the Australian constitution out of touch? Maybe, but I notice politicians never refer to the USA Constitution, where you have to be born in the country to be a politician and yet in all other matters the right wing rump of conservatives see the land of the free as their guiding light. Interesting.

    Whether it’s out of touch or not is a matter for the Australian people to decide by referendum and not the expeditious mentality of the political class. Let’s not forget that were it not for the Senate in the Abbotista era, the social services of this country would have been laid to waste in a couple of years. If the people thought it a mess then why did both major parties lose numbers in the Senate to right wing or so called populist minorities. Perfect system? No, but come up with a better one and the people might support it. The voter of today is not an idiot and that I believe is why the “swill” content of the Senate has increased over the last decade as people become disenchanted with the antisocial behaviour of the lower house. Considering the economic mess left by Keating, I would be careful in holding his reputation up as a shining example of aspiration.

  2. Frank Brennan says:

    The mess in the Australian Parliament has been a long time coming. And our politicians have known the problem for a very long time.

    The 1988 Constitutional Commission which included Gough Whitlam and Rupert Hamer as members recommended that section 44(i) of the Constitution be deleted and not replaced. They further recommended that the Constitution ‘be altered to make Australian citizenship a necessary qualification for membership of the Parliament’. They also thought the Parliament should have the power to impose a qualification requiring members ‘to comply with reasonable conditions as to residence in Australia’.

    Twenty-nine years ago, the Constitutional Commission reported to Parliament on the very problem now confronting people like Senators Canavan and Roberts. They reported at para 4.796 (Final Report of the Constitutional Commission, Volume 1, pp. 288-9): ‘Even though a person who is granted Australian citizenship may have taken all appropriate steps to relinquish the non-Australian nationality so far as he or she is able, the person may have retained the status of a subject or citizen because of the laws operating in that country. In that case a person may at present be incapable of being chosen or of sitting as a member of Parliament. The person’s right to take the fullest part in our representative democracy could be impaired by being ascribed a status by a foreign system of law that does not permit voluntary relinquishment of that status.’

    The Commission further recommended at para 4:797: ‘Any Australian citizen, including a person with dual citizenship, should be able to stand for Parliament. Accordingly, section 44(i) should be deleted.’

    It’s time for our politicians to stop the bleating and point scoring. Lead the people and propose sensible constitutional change NOW. Or just take the wrap for a constitutional provision which you have known for almost three decades to be highly defective, outdated, and problematic.

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