MUNGO MacCALLUM. Another fine mess the constitution has got us into.

We bar dual citizenship from the parliament, but the head of it – the Queen of England one who presides over ceremonial openings when she happens to be in the country, is not only a dual but a multiple citizen herself.  

Section 44 – the bit that deals with the eligibility or otherwise of members of parliament – is archaic, confusing and utterly inappropriate to the reality of today’s Australia.

According to one estimate, some four million of our citizens cannot stand for federal office. And if we are to take the provisions literally, the absurdities are, simply, untenable; we bar dual citizenship from the parliament, but the head of it – the Queen of England one who presides over ceremonial openings when she happens to be in the country, is not only a dual but a multiple citizen herself.

And as for barring those who hold profit under the crown – at face value that would include not only the public service and various private citizens who are involved with government in some form or another, but parliamentary backbenchers themselves – absurdly, section 44 exempts “the Queen’s ministers of state” but not the rank and file.

However, when it comes to dual citizenship, the constitution is silent about ministers, which means that Matthew Canavan’s much applauded gesture from resigning from cabinet is utterly irrelevant – the only question is whether he was elected properly in the first place. And it will apparently take months to determine this in the High Court, with the likelihood that others will be caught up in the same constitutional net.

Obviously it was not meant to be like this: our venerable founding fathers (well, actually ambitious, conniving, compromising colonial politicians, but let’s observe the usual fulsome description) were exclusively concerned not with Australianess, but with Britishness. It was all about loyalty to the mother country and keeping potential intruders – French, Russians, Americans, and of course all the lesser breeds – as far from harm’s way as possible.

And there is very little wriggle room in the wording: you are either in or you’re out. Canavan’s invocation of the Shane Warne defence – mummy gave it to me – and Malcolm Robert’s assertion that, against all the evidence, he always chose to believe he was Australian – a claim only slightly less deranged that Malcolm Turnbull’s declaration that the laws of mathematics must give way to Australia law — are amusing but hardly the point.

The High Court has permitted a little leeway: if someone has taken all reasonable steps to revoke their previous citizenship, they may be in the clear. But there are an awful lot of ifs and buts in that judgement.

So now even the conservatives, who traditionally regard the constitution as holy writ, are agitating for change. It is most unlikely to happen; proposing a referendum he might easily lose is not the kind of distraction Turnbull needs. And from the public interest perspective, it misses the real issue, which is the one of genuine allegiance to the country, not the outdated provisions that purport to enforce it.

No-one believes that Canavan, Scott Ludlum, Larissa Waters or even Roberts is a fifth columnist. We should be far more worried about MPs who openly proselytise for foreign interests: Sam Dastyari in China and Michael Danby in Israel spring to mind but there are plenty of others who are passionate about supporting America at all costs, or kowtowing to Britain – the former Pom Tony Abbott’s knighting of Prince Philip comes to mind.

Then there are those who place their religious convictions against the laws of their country: we may not have any Moslems spruiking Sharia in the parliament but there are a lot of Catholics who regard the edicts of the Vatican as transcending secular statutes. So section 44 is long past its use-by date.

But it is only the tip of an enormous iceberg, a threat to navigation for the ship of government. There are numerous sections that were not, could not have been, predicted 120 years ago, and should be amended or removed.

But the catch is that those same founding fathers made it as difficult as possible to unscramble what is now a very smelly omelet and the already beleaguered Malcolm Turnbull is not the one to attempt the task. He’s tried one referendum and lost and that’s enough. Just muddle on, chaps.

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5 Responses to MUNGO MacCALLUM. Another fine mess the constitution has got us into.

  1. C.G.Hely says:

    OK! These politicians cannot comply with a simple to understand section 44 of the constitution; even when it is drawn to their notice by having to tick a compliance box on the AEC’s nomination form and when the AEC also draws their attention to it’s fools guide 101 to Section 44. May be we should be seriously concerned about their ability to adequately consider the complex legislation they vote on once elected.

    CGH

  2. James Lewis says:

    It seems strange that a part of the constitution that requires legal interpretation by some of the most learned legal persons in the land, should be the subject of a referendum to change it. Can we, the legally uneducated, make a just decision? Do not judges direct juries to assist in their deliberations? Can the high court not direct the parliament in matters constitutional?

    Was the constitution initially voted on by the populace or the parliament?

  3. Christopher Lamb says:

    Nice points here. The Queen herself is presumably a part of the Australian Parliament given her role (see http://www.aph.gov.au/About_Parliament/Work_of_the_Parliament/Forming_and_Governing_a_Nation/parl#comparl) but I guess she is somehow exempt from the strictures of Article 44. As to her multiple citizenship, the case of the Queen is problematic – normally Heads of State wouldn’t swear allegiance to themselves – but her children, including Prince Charles, do carry passports and when they enter Australia they do so on UK passports. This means that they hold, even if only notionally, Australian visas.

  4. Corbu says:

    This had better be addressed and fixed when the arrangements for a republic are set in place.

  5. Niall McLaren says:

    The problem could be solved if we got rid of dual citizenship, i.e. that by holding an Oz passport, the citizen is ipso facto disqualified from having allegiance in any form to another, or holding any form of citizenship in another under penalty of losing Australian citizenship.

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