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Strafing Parliament: Australia’s High Court Citizenship Ruling

And they fell like ninepins. Weeks of predictions, optimistic readings, and hopeful signs were dashed as the members of the highest court of Australia laid waste to members of Parliament. Citing a section in the Australian constitution that has become something of a heavy footnote in popular consciousness, the judges ruled five out of seven applicants ineligible to sit in Parliament.

The applicants have come to assume a title more commonly associated with criminal gangs or wrongly accused terrorists: the Citizenship Seven. But of the seven, only Senators Matt Canavan and Nick Xenophon survived. Barnaby Joyce, the Deputy Prime Minister, Fiona Nash, Larissa Waters, Scott Ludlam and Malcolm Roberts all became confirmed victims of section 44(i).

That section, read strictly, is onerous in application, making ineligible anyone “under any acknowledgment of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power”.

It had been a true battle. Submissions varied. Joyce and Nash had suggested that s. 44(i) required that a foreign citizenship be actually chosen or maintained, its “essence,” noted the judges, being “knowledge of the foreign citizenship”. Ludlam and Waters insisted that a person be “put on notice” where the person is alerted to “primary facts” of possessing citizenship of another country.

A third, one advanced by Canavan, Roberts and Xenophon, was that foreign citizenship be voluntarily obtained or retained. This enabled a distinction to be drawn between naturalised Australians and “natural born” Australians.

The former placed the onus on the naturalised Australian to have taken all reasonable steps to renounce citizenship of another country. The latter would be disqualified if he or she took active steps to acquire a foreign citizenship or, after acquiring knowledge of that citizenship, did not take reasonable steps to renounce it.

The High Court, much against the spirit of any true widening of the section’s purpose, kept matters narrow. Constitutional history suggested no need to change that stance. As for the impact of a foreign law, that, in of itself, could never determine the operation of the disqualification provision. Fine words in theory, but in practice, a far from easy proposition.

A notable limb of reasoning in the judgment was its dismissal of the mental element of the potential parliamentarian. The section made no reference to the state of mind, and investigating “the state of mind of a candidate” was undesirable to the stability of the process.

What, then, of the survivors? Xenophon was spared the cull as he was not truly a “subject or citizen of a foreign power” or entitled the rights and privileges of one. His foreign citizenship was “residual” in nature, one rooted in British practice towards overseas territories – in his case, Cyprus. He was neither a subject nor a citizen of a foreign power for the purposes of the section.

Canavan was similarly graced by the good will of the court. When he was born, the court noted, his parents and grandparents were Australian citizens and only Australian citizens. As for the senator, never one to be entirely honest in press conferences on his background, he had never visited Italy nor taken steps to acquire Italian citizenship. The court, fortunately for Canavan, took the view that registration of Italian citizenship was different to a declaration of it, effectively meaning that the right to it lay dormant.

The Prime Minister, Malcolm Turnbull, had had moments of hope over experience in claiming that the High Court would give a clean bill of constitutional health to his deputy. His statements prior to the court ruling came close enough to a directive, a point that would not have been missed by the judicial officers. What transpired was a predictably conservative ruling.

The sense that Australians, certainly those with dual citizenship, have received a good blow is palpable. The expert commentary on the section certainly point to its archaic formulation, one that takes aim at diversity in favour of one citizenship. Adrienne Stone, director of the Constitutional Centre for Comparative Studies, feels that such an eligibility requirement should be inapplicable in a multicultural society.

“We would be missing out on terrific representatives. But also it’s a matter of the most basic fairness that people ought to be able to contribute or participate on equal grounds.”  Waters similarly backs the point that the reading of section 44(i) “would eliminate a good half of our population from running for Federal Parliament.”

The other side of the coin is a less forgiving one. The paperwork on background, familial links, and efforts to renounce, were not done in five cases, and convincing Australians that a constitutional amendment to permit dual citizens to sit in the highest chambers in the land is not one that will fly easily, should it even grow wings. The electorate’s kindness only extends so far.

The only possible textual change will have to be by a mechanism of a double requirement: a majority of electors in a majority of states and a majority of the country, a truly high bar to satisfy.

Referenda have a habit of dying in brave efforts to cross the line – a mere 8 out of 44 seeking to amend the constitution have succeeded, the last being 1977. As constitutional law professor Anne Twomey rightly notes, “It is not the sort of thing that people march on the streets for.”


17 comments

  1. paul walter

    I still don’t get it. If you have assumed Australian citizenship at the appropriate ceremony with presumably paperwork to go with it, as Ludlum who has been here since he was a tot did, or been here since you were a few months old, as with Waters, that has surely cancelled out, renounced, foreign citizenship by a person’s own choice?

    Since you virtually pooped your first nappies, all you rightly know is that you are “Australian”, as with Waters. What does all this other horseshit about what someone in Cyprus or Wellington or Ottawa writes down on a bit of paper you knew nothing about. wouldn’t you be sent of a fool’s errand for days, weeks or even months on nothing more than a technical absurdity?

    Roberts has been the only one to overly claim to dual citizenship, except possibility Nash, these are the only two the law should apply to, I would have thought.

  2. OPPOSE THE MAJOUR PARTIES

    so adrienne stone thinks we are missing out on talent by prohibiting dual nationals with divided loyalities, which could manifest in times of conflict, such as malcolm roberts and barnaby joyce, from sitting in parliament? As an eighth generation australian whose ancestors suffered in the trenchs of the somme and who died at galipoli, I find her comments rascist and offensive as, first, she implies that australian citizens are incapable of governing themselves and second that my sovereignty as a citizen should be devalued by multinationalism. In effect she says we should not only be owned by multinationalists we will be governed by them as well. This woman is clearly yet another naive academic who has spent too long mollycoddled in legal educational institutions and not enough time in the real world. She is not unlike the 24 ‘great legal minds’ that appeared in the HC citizenship cases and who displayed a serious lack of understanding of the applicable law and charged the aust public a small fortune for their useless but ‘valuable’ time. The questions involved in changing s44 involve not simply multiculturalism. There are serious moral and sovereignty issues to be dealt with as well, as i allude to above.

  3. OPPOSE THE MAJOUR PARTIES

    paul walter. the situation and decision may be much easier for you to compehend if u understand the the framers of the Constitution decided to play it safe and to prohibit anyone for whom there was a risk of having a divided loyalty in the event of war or conflict, from voting in parliament on issues, in particuar, those arising from that war or conflict. if you dont have such a prohibition you are effectively saying its ok for politicians to have divided loyalties. Which would you prefer?

  4. OPPOSE THE MAJOUR PARTIES

    Divided loyalties? if turnbull runs this as an issue and advocates for s44 to be amended
    to allow politicians to have divided loyalties he will be go even further behind in the polls.

  5. paul walter

    Ok, theoretically.

    Yet Waters, Ludlum and yes, even Nash have gone, yet the likes of Campervan and Xylophone remain. I think of others with divided loyalties as to foreign powers and corporates who few would ever understand in such a light, who have only ever put this nation second and wonder what the likes of Kirby J would have made of this stuff.

  6. Michael Taylor

    OTMP, I personally think that Turnbull’s faint suggestion that s44 be amended was nothing more that an episode of sour grapes.

  7. helvityni

    paul walter, out of those seven, I would have kept only Waters and Ludlum, love them both…I would not have been upset if Xenophon were amongst the losers…

  8. Shutterbug

    helvityni

    In complete agreement. Waters and Ludlum acted with total professionalism which is in complete contrast to the snouts in the trough who stayed put and grunted away happily on the public coin.

  9. OPPOSE THE MAJOUR PARTIES

    its not a matter of partisanship. it is simply applying the law to the facts. the purpose of s 44 was to prevent divided loyalties. dual citizens necessarily have divided loyalties. canavan and mr x were not found to be citizens of other countries or dual citizens on the facts and thus did not have divided loyaties. full stop. the SG stephen donague QC should have known this and advised the gov accordingly. he didnt. he should be sacked immediately. other than gleeson who vaguely referred to the point when he said that the court should apply the practical purposivism approach to interpretation, which is the precedent in interpreting legislation, none of the other 24 ‘great legal minds’ in the proceedings raised the point. that certainly reflects on their competence and upon the legal profession generally especially how these numbskulls have risen to the top of tne profession. In the end, it was simply a question of fact of whether they had dual citizenship. if so they gad divided loyalties and wete in hreach of the intent of the drafters of s 44 mental elements such as honed belief etc were irrelevant. roberts held on gecause he wanted to.keep.the good conditions and wages and perks of a fed politician for as long as he could given his lack of sucess in his previous enterprise as an anti climate change consultant.

  10. OPPOSE THE MAJOUR PARTIES

    think about this. a dual citizen can vote for a gov, or if a parliamentatian and if s 44 amended, could vote on legislation that they do not have to live under. They can escape the operation of a law they consented to by escaping to the other country of which they are also a citizen. A sole aust ctizen cannot do that. Why should a foreign national be given the right to compel sole citizens to live under a gov or law that they are not similarly compelled to.live under? Theoretically, if dual citizenship was allowed, then a large group of neo liberalists could be migrated into aust, be granted duel citizenzhip, then gain preselection and make laws and, after implementing their agenda, leave. eg
    Mathius Corman. This is the type of scenario the framers of s 44 had in mind when prohibiting divided loyalties. generally i am not a great supporter.of our constitution but on this the framers got it right.

  11. OPPOSE THE MAJOUR PARTIES

    Multi ‘culturalism’ is NOT Multi ‘nationalism’. Adrienne Stone is reported as saying this: “ought not to be, in a multicultural society, placing an eligibility requirement on entering parliament that in fact falls unevenly”. Firstly, there is nothing ‘uneven’ about it. The requirement falls evenly upon all candidates. All candidates are required to comply with the same criteria – being sole Australian citizens. All potential candidates are under the same obligation to comply regardless of their cultural identity. They are given the same opportunity to comply as anyone else. Thus, she is confusing ‘multiculturalism with ‘multi-nationalism’. A sole Australian citizen can be from any culture or from any ethnic group but if they want to be politicians they must have undivided loyalties and are equally free to renounce any other citizenship they may have as others are which does not necessitate renouncing their cultural or ethnic identity. Sole citizen Australians come from diverse ethnic backgrounds. eg Mr X and Canavan. ‘Multiculturalism’ and dual or multi citizenship or being a dual national or dual citizen are not the same thing. ‘Muti-culturalism’ refers to ones ethic background and identity. Citizenship status is blind to ethnicity. Hence Xenophon, Canavan and Corman are all sole Australian citizens despite their varied ethnic backgrounds.

    Turnbull is reported as saying this: “The Government will refer the decision to the committee so it’s able to consider, among other things, whether any changes to Section 44 should be recommended,”

    “[It will consider] how the laws and practices could be changed so as to minimise the risk of candidates being in breach of Section 44, and ensure in our multicultural society that all Australians are able to confidently stand for and serve in our Parliament.”

    All Australians are free to stand as it is. They can minimise the risk of being in breach of s 44 by doing a proper investigation. All Australians must do that regardless of ethnicity so it falls evenly upon all of them. ‘Multi-culturalism’ is not the same as dual citizenship. A person is free to undertake their culturally or ethnically specific practices in Australia regardless of their citizenship status and their citizenship status is irrelevant. They even could be, for instance, a permanent resident non citizen from Ethiopia or Israel or Iran or Vietnam or New Zealand.

    Both Stone and Turnbull are making a very basic academic and logical error. They are failing to identify the object of their analysis correctly. The object in this instance is dual or multi-nationalism or multi or dual citizenship NOT multi-culturalism. They are confusing and equating ‘multi-culturalism’ with ‘multi -citizenship’. s 44 does not impede on the policy of muticulturalism as is evinced by the HC decisions on Mr X and Cavanan. That from ‘two great legal minds’ one of whom is a professor, the other a commercially successful barrister. How laughable! Pity this poor country when people like these two make decisions concerning its future and the future of its people.

  12. Andrew J. Smith

    I am not sure how s44 can stay in its present form, not to give the LNP a free kick but to recognise the modern world (everyone now knows to check their bona fides), and to avoid this god awful nativism that has been resurgent. For many Australians born on an island of British Irish colonial and/or convict stock it makes logical sense to be ‘Australian’ only (with a nod towards indigenous).

    However, for those families or individuals of more diverse background, other citizenship or residency exists to make life easier and allow a contribution to one’s other heritage; versus the alternative of disappearing part of their identity to appear as a trusted and loyal ‘Australian’?

    Like the John Howard nativist flag waving, obsession with ‘English’ or ‘Irish’, identity, banning the use of the word ‘multiculturalism’, promoting ANZAC Day and digger heroes, ‘white working class’ etc. while creating antipathy towards immigrants, especially post 1970s non-European types; no one was that bothered about UK citizens having same rights as Australians, although without Oz citizenship (till early ’80s)?

    Many other nations allow dual citizenship for MPs etc. understanding the changing relationships and nature of the world; in fact the LNP were the most likely to preclude dual citizenship as ageing neo WASP (now open to Catholics and Jews) constituency has been empowered and consolidated for electoral advantage (in older and more monochrome electorates); threatened by global outlook, youth, working age, diversity and innovation.

    Personally I do not see the correlation between being only an Oz citizen leading to better outcomes for or acting in the interests of the electorate, society and the nation, versus a dual citizen. It’s about ethical citizens with the interest of all at heart, not some simplistic religious nativism of old white Australia.

  13. OPPOSE THE MAJOUR PARTIES

    Andrew J Smith. You obviously dont get it. what is so unfair about expecting parliamentarians to be sole citizens and have undivided lotalties given they make decisions regarding the resources of this country, millitary spending, aid and war? what is so unfair about asking someone to renounce their loyalties to another country before they sit in parliament? before they make laws about the rights of australians? nothing. A renunciation is a simple process without too much inconvenience. they are not subject to any additional criteria that permanent residents or sole citizens are. there is no discrimination in s 44.

    As i mentioned in my previous post, the current s44 does not preclude Australians from various ethnic groups and backgrounds from being parliamentarians. xenophon is not an ‘anglo saxon wasp’ yet he was eligible. your argument is defeated by the facts. Corman came to Aust and obtained citizenship solely to become a politician and to implement his ultra right wing agenda.

    I find it immoral that dual citizens who are not compelled to live under laws they consent too can vote and compel others to live under those same laws. dual cituzens vcan escape the operations of those laws yyet sole citizens can”t.

    Opening up s 44 is merely another neo liberalist globalist strategy to undermine the sovereign rights of current Australian citizens. Once Australian citizens realise that there is a serious risk that sharia law could implant itself in their country with the anticipated reforms, they will oppose those reforms in droves.

    How do you assess whether a person is an ‘ethical citizen’ before they have sat in parliament and voted on legislation? How do you know they have the interests of Australia at heart before they have sat in parliament and voted? you cant until.they have done so and then it inaybe too late. By allowing dual citizens to sit in parliament you are effectively saying its ok for politicians to make laws that benefit other countries and people in those countries. you are allowing that risk.

    ‘The changing world’ you refer to is one planned to undermine the sovereign proprietry rights of citizens and to replace it with a set of non proprietry ‘human” rights. My view is that those rights can co exist.

    By definition a citizen has an interest in the natural and public assets of the nation and a right to have a say in what happens to those resources. Take that away and the people have no right to obtain royalties from mining etc. thats the globalist agenda. destroy the sovereign proprietry rights of citizens and repkace them with a set of non propritry human rights. Under your touchy feely lefty centred agenda the australian people will have nothing and their assets will be transfered to rich multinational individuals and corporations without payment. that is the end goal of the neo liberal globalists…to take public assets at no cost.

    I for one will not surrender my sovereign proprietry rights as a citizen nor will i allow others with divided loyalties, where there is a risk that they wont vote in my interests but rather in the interests of citizens of other countries, to determine what rights i am to have while they can evade the consequences of the laws they subject me to. if they want to make laws they are free to renounce their alternate citizenship. any one who is not prepared to do that must be treated with suspicion.

    It is far more unfair to the sole citizen to impose the will of those with vested interests in other countries upon them , than it is to expect would be parliamentarians to renounce any potentially conflicting loyalty they have. what would motivate anyone who is not a citizen or who is a solebcitizen to want to legislate for citizens? it is not discriminatory to expect legislators to have undivided loyalties.

    As you can see i am far from a globalist. globalism, which is the cause of ‘the changing world’ you refer to, is merely a reactionary response to marxist internationalism and what you and stone are advocatong is the advancement if the globalist agenda. somply if someone wsnts to sit in parliament then they simply have to renounce all.other loyalties. that is the current situation and i see nothing wrong with that at all. i am sure the australian.people will also see nothing wrong with it when they see through the fallacies in the logic of multiclturalist argument.

  14. Andrew J. Smith

    Need to let some air out of your tires, it’s not about you or me, our beliefs, feelings, sentiments or sovereignty; nor am I a proponent for self over society based upon these intangibles. Further, what do you say to British regarding ‘sovereignty’ of Brexit vote who claim informal sovereignty over Australia through an imagined fast track for UK immigration, take on or over our regional trade agreements, while compliant Australians are bigots and there are too many Asians in Oz (heard that several times).

    Nowadays, there is limited multiculturalism for conservatives (left and right looking up to UK and/or Anglo world), and the other form of Oz ethnic multiculturalism which is viewed as a threat by many of the same to the old WASP status quo; constantly attacked, directly and indirectly or by omission eg. ignored in or disappeared from mainstream media (from outside diversity is viewed as one of the great positives of Oz, yet still cannot shake off remnants of white nativism).

    The logical fallacy of conservative arguments regarding dual citizenship, diversity and multiculturalism has been on display for years via Australian citizens Howard, Abbott and all those for the monarchy ignoring the citizenship of our sovereign head of state to the point of favouring anything British or US as better, versus Australians and an Australian Republic for all citizens.

    Quite paradoxical how conservatives with a suitably top down WASPish view of society wanting freedom of choice, less govt. etc. demand hierarchy, power and leadership to look up to; I can visualise LNP voting friends and family (SE Oz) being mightily peeved at how they see the LNP drifting into and aspiring to incompetence (which they claimed the Gillard govt. was). Maybe they will scrutinise MPs, IPA, mainstream media and NewsCorp more and our march towards national socialism for the top people?

  15. OPPOSE THE MAJOUR PARTIES

    Andrew J. Smith. Like Stone you are still equating and confusing multi-culturalism with multi or dual citizenship. Xenophon is not a WASP yet he was found to be eligible because he was an Australian citizen without divided loyalties despite his Greek and Cypriot. Your argument just doesn’t stack up on the facts. The current law does not conflict with multiculturalism if it did then X would be out. It is perfectly fine under the current arrangements for people from non wasp backgrounds to enter parliament provided they satisfy the same criteria that everyone else does. That is not racial discrimination and nor is it inconsistent with multiculturalism. If it was, more than half the members of the current Parliament would be disqualified. Multiculturalism is a policy not a law. The relevant test under s 44 is not whether it is consistent with muticulturalism it is whether the candidate has divided loyalties. Necessarily a dual citizen has divided loyalties. I doubt whether the Australian people will authorise any change to the Constitution that allows politicians to have divided loyalties.

  16. OPPOSE THE MAJOUR PARTIES

    Brandis Propagating More Lies. Why is Brandis’s lying? Or is it just his incompetence? Brandis is reported as saying that the HC applied ‘brutal literalism’ in its decision in the citizenship cases. This is untrue. A read of the full judgment and reasons of the Court makes it clear that the HC applied the purposive approach to interpretation as it is required to do. The literal aporoach to statutory interpretation means the court must only look to the words of the legislation alone and not go outside the legislation to consider materials other than the legislation itself in order to ascertain the intent and purpose of the drafters of the legislation. In its the full judgment and reasons the HC actually states it is engaging the purposive approach.

    Brandis is also reported to have said that the decisions made by Joyce and Nash while ministers are likely to be beyond legal challenge because the decisions are made by Cabinet not the Ministers. This is also not correct. Regardless about who actually made the impugned decision, the Minister responsible for the departmental port folio is legally responsible for the decision. In fact, if the minister is required to make a decision but fails to do so and passes that decision making authority onto another to make, then that itself is ground for ‘appealing’ the decision and having it over-turned. Hence, any person seeking to challenge a decision of a minister must join the minister or his/her department as a party as the legal decision maker and entity responsible for the decision.

    Despite the dubious way Brandis obtained his QC, it would be expected that a high ranking legal officer should know this. How is it that Brandis does not? Or is Brandis merely misleading and lying to us all in order to discourage those who have been badly effected by the decisions of nash and joyce from challenging those decisions. Given his poor performance in the HC citizenship cases, and that of his adviser SG Donaghue, i tend to believe that Brandis’s blatantly incorrect statements have more to do with his lack of integrity than his competence. That is, he would know that what he is saying is incorrect but is persisting with the falshood for political reasons. Those political reasons would include feigning genuine surprise with the High Court’s decision when he likely would have known the result in order to justify keeping joyce in Parliament to maintain LNP numbers in the house. In other words, he’s just a liar.

  17. paul walter

    I’ll buy OTMP, but Smith, you really seem to have nothing to offer beyond illogic.

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