Nov 12, 2017

I want to apologise for a failure going back to the Bicentenary in 1988.  The very fact that 26 January continues to cause controversy is possibly the best reason for keeping it as the national day. The ambiguity of its meaning obliges us constantly to re-examine our modern origins. The new round of debate drew from Malcolm Turnbull the wisdom that it “stands for Australian values”. He managed to say much the same thing at Beersheba of all places. So we are to seek “Australian values” from Botany Bay to Beersheba. All this took place in the middle of the self-imposed fiasco in which his own Deputy Prime Minister (and by extension a huge proportion of us all) is in a legal limbo about his citizenship

In 1988 I was keen to draft Prime Minister Bob Hawke’s speeches for the Bicentenary. These speeches have not been highly regarded, then or since. The theme we chose did not resonate. It should be recalled that multiculturalism and reconciliation were then struggling for acceptance on the political agenda – as they still are. So our theme “this nation of immigrants” was not as trite as it may sound.

We wanted to emphasise that being Australian did not depend on the number of generations one’s ancestors had been in this country, or even being born here – that the simple commitment of choosing to live here was enough. Hawke said: “There is no hierarchy of Australian-ness. The commitment is all”

Far from ignoring the question of prior occupancy, we used the fact of 50,000 years of aboriginal possession to show the absurdity of claiming that 200 (or 20 or 2) years of residence defined identity or allegiance.

Our failure to establish even this simple point as part of the national thinking can be measured by the shameful events from Hanson to the High Court. This failure now poses a painful paradox. We hoped to give Australian citizenship the widest, most generous, most inclusive meaning in the world. Thirty years on, Australia has foisted on itself a narrow, contradictory and incomprehensible definition of citizenship which defies not only common sense, but also common humanity.

The disqualification of members of parliament is only part of the fiasco. It derives from a mindset that has developed since the Tampa episode. Political incompetence and opportunism have played their baleful role in the process.

Those 600 men trapped on Manus are just some of the victims of it. It manifests itself in Dutton’s policies designed to limit the right to vote with all this phoney talk about ‘Australian values”.

The ironies are endless. Pauline Hanson professes to be “stunned” at the High Court decision. So am I. Yet nobody has done more than Hanson to call into question the rights and legitimacy of new and intending immigrants and to create the atmosphere where nobody is certain about what constitutes “real Australians”.

How has it happened that a Constitution framed by the Convention politicians, a majority of whom themselves were born overseas, is now deemed to disqualify somebody whose father was born in New Zealand or Britain or Timbuctu?

I repeat that this fiasco is self-imposed. The lack of political leadership has been beyond belief. The hot-shot Sydney lawyer has been caught up in the tails of his own opportunism. When it seemed that the victims would be Green and One Nation senators, he thought he saw a chance to solve his problem with the Senate. When it engulfed his own Deputy Prime Minister and Leader of the Nationals, Barnaby Joyce, he relied on advice from the Solicitor General “that the High Court would rule in Joyce’s favour. He still refuses to produce that advice. Preoccupied with his plot to destroy Shorten personally, as part of his government’s attack on the unions, he failed to enlist the Labor Party in a bi-partisan effort to mobilise public opinion to save, not just individual members, but the legitimacy of the parliament itself. It has been lack of leadership on a monumental scale.

How might such an effort have been mounted? First, the Prime Minister should have alerted the general public and the media to the real danger in which the stability of the parliamentary system stands as a result of this sudden and inexplicable apparition of Section 44 after 117 years’ innocent slumber. The precedents and practice of more than a century suddenly go for nothing.

Second, perhaps most importantly, he should have invoked Section 47. In much plainer English than the now-dreaded Section 44, Section 47 says:

Disputed elections

Until the Parliament otherwise provides, any question respecting the qualification of a senator or of a member of the House of Representatives, or respecting a vacancy in either House of the Parliament, or any question of a disputed election in either House shall be determined by the House in which the question arises.

Why should Section 47 be any less authoritative than Section 44, and why should it not be interpreted as broadly (or narrowly) as the High Court has interpreted Section 44? In fact, it asserts one of the greatest parliamentary principles of all – that Parliament is master of its own house.

If the Federation Founders believed in anything, it was the Westminster system, established by the precedents and struggles of 300 years before 1901. That is why so much of our system, including the office of Prime Minister, the key principle of Cabinet government, and the rules and conventions of responsible government, including majority rule by the Lower House, are not written down at all in our Constitution. The relevance of Section 47 should at least be tested by a series of parliamentary resolutions.

Thirdly, Turnbull should, from the outset, have maintained the assertion which Attorney General George Brandis failed to make until the very eve of the High Court decision: that when a member or senator is sworn in, he or she thereby declares an overriding allegiance to Australia.

Fourthly, he should have, by parliamentary resolution, denied absolutely that any other country can unilaterally impose disqualification on an Australian citizen. There must, for example, be deep concern among a significant group of citizens in Turnbull’s own electorate of Wentworth. The State of Israel recognizes that all persons of Jewish descent have the right of return to Israel. They are specifically given the right to immigrate to Israel. Presumably under the High Court’s interpretation, this counts as a “right or privilege from a foreign power”.

If I am correct, Australians of Jewish descent cannot sit in Parliament. But there are six million reasons why such citizens, no matter how many generations they may have been here, no matter whether they are observant Jews or not, and no matter what their opinions about policies of the Israeli Government, would be unwilling to abjure this right.

The fact is that, in a parliamentary democracy, the right to stand for parliament is as important as the right to vote. A citizen who can’t represent fellow citizens in Parliament is a second-class citizen. The objective for a country like Australia, so mixed and uncertain as we are about our origins, should be to widen democratic rights, not to curtail them. This is the clear connection between the indelible shame of our treatment of refugees and the current mess.

Ultimately, this farce must be ended once and for all by an alteration of the Constitution. Turnbull should have made this clear from the start. The problem is that confidence in the present national leadership is so low that almost any referendum proposed by them will be rejected. Repeal or even clarification of Section 44 would almost certainly fail at present. But we have to act before the next Federal election. The proposal with the best chance of acceptance is a simple one:

That any citizen qualified to be elected to the Parliament of any state should be qualified to be elected to the House of Representatives and the Senate.

Yet what an irony: to clear up a federal disaster by following the example of states formed as British colonies!

But it is the best proposal on offer. All the more reason for me to apologise for the missed opportunities of 1988.

Graham Freudenberg AM is an Australian author and political speechwriter who worked in the Australian Labor Party for over forty years. He has written over a thousand speeches for several leaders of the Australian Labor Party at the NSW state and the federal level. These have included Arthur Calwell, Gough Whitlam, Bob Hawke, Neville Wran, Barrie Unsworth, Bob Carr and Simon Crean.  In 1990 he was appointed a Member of the Order of Australia in recognition of his service to journalism, to parliament and to politics.  In 2005 he was inducted as a life member of the NSW ALP.

He is the author of four books:  A Certain Grandeur – Gough Whitlam in Politics, 1977;  Cause for Power – the Centenary History of the NSW Labor Party, 1991;  A Figure of Speech (autobiography), 2005; and Churchill and Australia 2008. 

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