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The price of procrastination

Speaking about the parlous state of politics in this country, anti-corruption campaigner Tony Fitzgerald wrote that “ethics, tolerance and civility are intrinsic elements of democratic society and that the politicians’ mutual contempt and aggressive, ‘end justifies the means’ amorality erodes respect for authority and public institutions and compromises social cohesion.”

Truer words were never spoken.  Our politicians can thank themselves for the loss of the community’s trust.  Their behaviour in so many areas is deplorable.  The standards they set for themselves would not be tolerated in any other workplace or public institution.

And when problems arise, the politicians police themselves and, unless there is intense media scrutiny as in the case of Bronwyn Bishop, they do nothing.

“The usual, and sometimes intended, outcome is a flurry of superficial activity, appointment of a suitable group of other insiders to report, lengthy discussion of their report, considerable navel-gazing, a feel-good pronouncement and business as usual,” wrote Mr Fitzgerald.

A prime example of this is the current imbroglio regarding Section 44 of the Consitution.

The House of Representatives Standing Committee on Legal and Constitutional Affairs was given a reference in late 1996 to inquire into and report on the operation of subsections 44(i) and (iv) of the Constitution, including the exceptions to subsection 44(iv). The Committee was also asked to inquire into and report on action to address any identified problems, including constitutional amendment, legislative change and administrative action.

In approaching its task the Committee had regard to the work of previous studies of section 44 including the Senate Legal and Constitutional Affairs Committee report of 1981, the Australian Constitutional Convention (1983 session) and the Constitutional Commission which reported in 1988, as well as significant case law on section 44, particularly Sykes v Cleary (1992) and Free v Kelly (1996).

The AEC had already provided submissions to the Joint Standing Committee on Electoral Matters following the 1987, the 1990, the 1993 and the 1996 federal elections, highlighting the difficulties that candidates experience in ensuring their compliance with the various provisions of section 44; indicating that the AEC does not have and should not have any statutory responsibility in providing legal advice to candidates on their particular circumstances; and suggesting that short of constitutional amendment by referendum, there are no real legislative or administrative solutions to the problems experienced by candidates in determining their vulnerability to the section 44 disqualifications. These views on section 44 expressed at past inquiries by the AEC, were reiterated in 1997 to the inquiry by the Legal and Constitutional Affairs Committee.

The Committee found that:

Subsection 44(i) expresses the principle that members of parliament must have clear and undivided loyalty to Australia and must not be subject to the influence of foreign governments. The language in which the principle is expressed is archaic. The provision was drafted before the concept of Australian citizenship developed and the scope of the subsection is uncertain.

The exclusion from federal parliament of persons who have dual or multiple citizenship is problematic. First, there is a question of whether the many Australian citizens who are dual citizens should be excluded from the political process.  Second, the steps necessary to renounce other citizenships are those embodied in the relevant foreign law. They may be cumbersome or uncertain. The process may also be irreversible. Those who renounce a foreign citizenship in order to nominate and then fail to get elected may be considered to have paid a high price for participation in the political process. Third, many Australians may be unaware that they are dual citizens.

They concluded that the problems in the operation of section 44 can only be properly addressed by a national referendum to amend the Constitution. In the Foreward to the Report, the Chairman of the Committee said the following:

As the collection of evidence drew to a close it became evident that there was but limited scope for addressing the problems by means of legislative and/or executive action. The Committee considers that constitutional amendment is necessary to address the problems raised by the subsections. The Committee is well aware that amendments have little chance of succeeding at referendum unless there is bipartisan support for the proposals outlined in its report. We trust that such support will be forthcoming.

The conduct of the inquiry and consideration of our report demonstrated the best features of the parliamentary committee system – including the ability to approach a problem on its own merits and to seek the best solutions…

The likelihood of a referendum being held on section 44 of the Constitution alone is probably remote, but in the context of the forthcoming Constitutional Convention, and other recent debates on the contemporary relevance of the Constitution, it is possible that amendments to section 44 could be put to the people as part of a larger package of reforms. Whatever the pathway to constitutional change, it would appear from the deliberations of this Committee that there is a real possibility of bipartisan political support for amendments to section 44 of the Constitution.

The Chairman of that Committee was Kevin Andrews.

Thirteen years later, in April 2010, the Australian Electoral Commission reported that:

The Government has yet to respond to the recommendations by the Committee that a referendum be conducted to amend section 44, and that the AEC, DFAT and DIMA work together to improve the quality of information available to the public.

We are now twenty years on and still nothing has been done.

It is obvious our Constitution needs an update and while we are at it we could include recognition of Aboriginal and Torres Strait Islanders and remove the laws that allow racial discrimination.

But the chances of our gutless do-nothing politicians listening to the advice from countless inquiries and submissions appear to be zero.

So suck it up kids and bear the consequences of your own inaction.


27 comments

  1. townsvilleblog

    In my humble opinion, I want a person sitting in the federal parliament who has renounced any/all other citizenship and is fully committed to the Australian citizenship. I see no reason why, if the person is a migrant, they could not run after having done this action?

  2. Ricardo29

    Generally I am not in favour of a change to s44. Archaic it might be, I even accept that it has the potential to exclude some really good potential parliamentarians unless they renounce their citizenship of another country. However I support the requirement that you have allegiance only to Australia. I do wonder if renunciation of citizenship of another country might dis-entitle (?) someone to, say, an aged or other pension from the home country. This might make it a requirement too far.

  3. Terry2

    Whenever we discuss the Constitution it’s always piecemeal changes and a sticking-plaster here and a finger in the dyke there.

    We have a Constitution that is totally lacking in Rights to the people, something that increasingly evident when it comes to matters like same sex marriage : if our Constitution simply said that all citizens are equal before the law the matter would never have become controversial, the Howard inspired changes to the Marriage Act in 2004 would never have passed the constitutionality test and we wouldn’t have had this ridiculous postal survey .

    Yes, we need some long overdue updates to our Constitution, in my view a complete re-write is urgently called for. It is a complete farce that section 59 of the Constitution has not been removed : we are told that it no longer has any legal effect, but it’s still there isn’t it ?

    S.59 The Queen may disallow any law within one year from the Governor-General’s assent, and such disallowance on being made known by the Governor-General by speech or message to each of the Houses of the Parliament, or by Proclamation, shall annul the law from the day when the disallowance is so made known.

    The next Australian federal government should commit to a far reaching Constitutional review including the recognition and non-discrimination issues and a Bill of Rights which would all then be subject to an omnibus referendum (i.e. taking the updated Constitution as a whole rather than section by section).

    This might take leadership and vision so, perhaps it falls at the first hurdle !

  4. Kaye Lee

    We also need to get rid of the race laws in section 51. I have just been reading the debate about them from 1898.

    Edmund Barton, who went on to become our first PM, said “I entertain a strong opinion that the moment the Commonwealth obtains any legislative power at all it should have the power to regulate the affairs of the people of coloured or inferior races who are in the Commonwealth.”

    The states were not happy about having their right to discriminate on the basis of race taken over by the Commonwealth.

    Mr. ISAACS.- I do not see why it should not be left to the state. We should be placed in a very awkward position indeed if any particular state is forbidden to pass any distinctive legislation in certain well-known instances. For instance, if Victoria should choose to enact that Afghans shall only get hawkers’ licences under certain conditions which are not applicable to Europeans she may be debarred by this sub-section from doing so. I do not know how it will affect our factory law in regard to the Chinese which does not operate beyond the confines of Victoria at all.

    Sir EDWARD BRADDON.-Why single out the Afghans?

    Mr. ISAACS.-If any other race possess the same characteristic as the Afghans I will put them in the same class.

    Mr. DEAKIN.- We have Acts in some of the colonies relating to the Chinese; in other colonies there are, or may be, Acts relating to Afghans. In the northern colonies there are statutes relating to kanakas.

    http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22constitution%2Fconventions%2F1898-1096%22

    This is the section that allowed the draconian Northern Territory Intervention – different laws for people based on race.

    I agree Terry….the whole bloody thing needs a revamp.

  5. Terry2

    Looks as though Labor MP’s Susan Lamb (Longman Qld) and Justine Keeay (Braddon tas) may have to resign and be referred to the High Court. Both were British dual citizens and took action to renounce but timing may be against them.

    John Alexander expects the UK authorities to tell him today if he is entitled to British citizenship and if they say yes then he too is gone and he may not nominate again.

    I feel a snap lower House election coming on in the new year !

  6. Matters Not

    No current leader has the political capital to expend on a constitutional change referendum. Particularly when it’s a problem which can be traced to their own carelessness. It’s not a particularly high hurdle.

    Far too easy to run a negative campaign. Even Turnbull (not known for his good judgement) recognises that.

  7. Kaye Lee

    Re Susan Lamb….

    “On 23 May 2016 I took all necessary steps to renounce by completing and sending the UK Home Office Form RN, “Declaration of Renunciation of British Citizenship”, and paying the requisite fee.

    “Australia Post confirmed the Renunciation form was received by the UK Home Office in Liverpool on 25 May 2016.

    “I was subsequently cleared to stand by the Labor Party, and nominated on 7 June 2016.”

    The “official date” on the declaration of renunciation notice from the UK government was 11 July.

    Likewise for Justine Keay….

    “On 9 May, 2016, I renounced British citizenship by completing UK Home Office Form RN, Declaration of Renunciation of British Citizenship.

    “On 13 May, 2016, I sent the Declaration of Renunciation of British Citizenship to the Home Office via International Express Post, together with payment of the processing fee, my Australian passport and my British passport, which I formally surrendered.

    “Australia Post confirmed my renunciation was delivered to the Home Office in the UK on 23 May, 2016. My renunciation was officially receipted by the Home Office on 31 May, 2016.

    Ms Keay’s renunciation was received from the UK on July 11.

  8. Kaye Lee

    It’s a bit rich that Abetz is calling for Lamb and Keay to be referred when his renunciation of German citizenship was dated March 9, 2010.

    http://tasmaniantimes.com/index.php/article/mercury-abetz-challenge-withdrawn

    Abetz said he “wrote a letter” in 1993 or 1994, to which no reply was received but no copy of the letter can be found in the records of the German Embassy.

  9. stephengb2014

    Kaye, thanks, what an informative article, then again your comment about the racism in the Constitution.
    Terry2 yes ypur comment very apt.

    The australian Constotition Act is in my view less of a constitution rather than a bit of legislation to retain the status quo.
    It is clear by the wroters of thos document that the comfprtable club shpuld not be upset exct where the club can benefit.

    As a dual citizen I have previously stated my view that members of Federal Parliament must not be dual citizens nor have pecuniary interests that could cloud their judement. I have not changed that view but what has changed is my understanding that the section 44 is a problem as it stands!
    Having said that, I believe whole harted that it is time that a new Constitution be created or amendments to this one be instigated that includes a total compliance with the Universal Declaration of Human Rights, as a bare minimum. That repeals such sections that perpetuates racism, that clearly removes the Party System from parliament, that removes all contributions from lobby groups, that perpetuates funding of Federal elections from the public purse.

    SGB

  10. John Kelly

    Procrastination indeed. I would never support a referendum that permitted dual citizenship. The only way the current chaos can end is for a general election no later than the first Saturday in February 2018 which is more than enough time for anyone who might be a dual citizen or entitled to the citizenship of a foreign country, to renounce.

  11. Ella miller

    As an Australian citizen, who was born in Europe, I would never support changes to our Constitution. The reason, so many vested interests come into play in these changes and I would not trust it to the current lot in government.
    Another issue that is not talked about is;
    if a person seeks election into Parliament, where they will be introducing laws etc. etc. the least they should demonstrate is their ability to fill in declarations they make, that is accurate and in line with our Constitution. It is NOT rocket science.If they can’t then they have no place in the Parliament. Everyone knows where their parents and grandparents were born.

    As far as our Government is concerned, a Chinese friend told me something interesting that he had read from one of the Chinese Philosophers. He said there are 4 kinds of governments;
    1. is a kind that works so well that people don’t notice it.
    2. one that is loved dearly by the people because it is a just government.
    3. A dictatorial government which is feared by all people.
    4. A government that is so inept, and unjust that they are loathed by the people.

    Sadly we have the latter. Can’t wait for the election.

  12. corvusboreus

    Ella miller,
    Far-be-it from me to propose any amendment to the ancient wisdom of the Chin scholars, but I’m going to anyway.;

    #3 (pushing 3 to 4 and 4 to 5) A government that is that is predominantly tolerated by the people, either due to public apathy/misinformation, or in lieu of a demonstrably valid alternative.

    Ps, there are also other likely variants within such a numerical spectrum.

  13. Ella miller

    Corvusboreus, I guess No5 is suitable for modern times. Sorry I have not thought too deeply, but thought it was interesting.

  14. diannaart

    Given the dubious associations many parliamentarians have with business and other lobby groups, perhaps retaining the s44. as is, may be prudent procrastination.

    As others have noted if those wishing to aspire to federal politics can’t honestly, sincerely fill in a legal application, then they deserve to be disqualified – not that I don’t feel sorry for some such as Larissa Waters, who, I believe, was genuinely surprised to find a baby younger than 12 months could have Canadian citizenship.

    Meanwhile, in the Parliament of Procrastination:

    We have Equal Marriage to be made policy.

    We have no real Climate Change policy that fully complies with Paris in the truest sense and which will progress Australia into a technologically advanced future.

    We have 600 men who are being deliberately starved of both their human rights and basic necessities – part of which entitles living free from fear.

    We have a First Nation people asking for consultation, having their request dismissed arbitrarily. Of course, working WITH First Nation has never been a consideration.

    We have the usual depletion of investment into education, health, public infrastructure and so on…

    Maybe…

    … this a master plot by the neo-economically driven IPA, to prove the inadequacies of having any public governance?

  15. Matters Not

    Re Section 44:

    Some Coalition lawmakers who voted so willingly to create new and very tough hurdles for migrants wanting to gain Australian citizenship, suddenly became very dazed and confused and found their own personal citizenship status to be unfathomable. Equally, the meaning of the Constitution which had been pretty much settled by the High Court, and crystal clear in its wording, somehow became uncertain. Warnings by Parliamentary Committees in past years seemed to be of no significance.

    … Take the UK. Every young Aussie-born person planning to go to the UK to work usually takes less than 24 hours to figure out the benefits of having a UK born parent. They can quickly find out from http://www.gov.uk/check-british-citizen if they have citizenship by descent from the time of birth and therefore unrestricted access to the UK labour market. There can be complications, but mostly it’s not all that confusing

    John Alexander as a tennis player travelled the world. That he didn’t realize his citizenship status stretches the imagination.

    https://johnmenadue.com/peter-hughes-citizenship-for-them-and-citizenship-for-us/

  16. Kyran

    “to regulate the affairs of the people of coloured or inferior races”

    It’s funny, isn’t it? By removing the racist provisions in Sect 51, we can join our First People on the long walk to meaningful change in the regulation of all of our affairs. By keeping Sect 44, we regulate what is, clearly, an inferior breed, comprising many races. Our politicians. Given that our politicians are so delightfully multiracial, this cannot be considered a racist sentiment.

    Sect 51, and other changes, have been discussed for many years. Given this government’s predilection for procrastination, ain’t nothing gonna happen soon.

    https://www.humanrights.gov.au/publications/about-constitutional-recognition

    Just for the record, there have been 44 referendums held since 1901 and only eight of these have been successful. The most successful referendum in Australia’s history was in 1967, where 90.77% of the nation came together in support of Indigenous rights.

    Given that track record and the government’s insensitivity to the mood of the people, they will likely spend more time and energy in trying to float a Sect 44 review, which will be doomed to failure, and continue to ignore the changes that the Australian people would embrace, and which would likely succeed.

    “So suck it up kids and bear the consequences of your own inaction.”
    At least until the next election.
    Thank you Ms Lee and commenters. Take care

  17. Glenn Barry

    @ Kaye Lee – Abetz doesn’t exhibit anything that I’d characterise as self awareness, he’s got hypocrisy down pat however 😀

  18. guest

    Suck it up, kids, and bear the consequences of your own inaction.

  19. ozibody

    … If the cap does NOT fit … change the HEAD ! ? .,.. neolib think ! … Come On Aus. !

  20. Kaye Lee

    The thot plickens….

    LIBERAL MP Julia Banks is refusing to explain how she can claim she is not entitled to Greek citizenship when her brother has obtained it.

    She repeated the script that John Alexander used….“I look forward to participating in the process (regarding MPs citizenship status) which the Prime Minister announced yesterday.”

    They are also still looking at Alex Hawke’s possible Greek citizenship.

    The Greek Embassy says the son or daughter of a Greek citizen automatically becomes a Greek citizen, but that citizens must “duly register in the Records of a Municipality of the Hellenic Republic”.

    But the Constitution says “entitled to the rights or privileges of a subject or citizen”. This could get messy depending how pedantic they want to be and the court may have painted themselves into a corner on that.

  21. Andrew J. Smith

    The Constitution was written by British for British subjects. Further, whether one has citizenship or potential rights from another nation is hardly an indicator of ethics, loyalty and of nationhood; it seems demand for solo citizenship unlike elsewhere has a nativist whiff.

    I generally believe most of our MPs are owned or directed by their puppeteers, especially LNP, hence their same masters must be enjoying the sight of MPs acting unempowered and probably willing to do whatever it takes.

    Forget about the content, there are too many ‘cultural’ and related issues used to suck up the political media and PR space creating torrid and emotional debates; meanwhile corporates or top end of town continue on their merry unaccountable way.

    Latest from the IPA on SSM, according to highly esteemed Ms. Downer, on ABC The Drum (paraphrased) re. the plebiscite ‘if people vote no fine we move on and go forward, if yes there will still need to be more debate’. This suggests that many cultural issues in the public space are used to create furore in the electorate and delineate the boundaries for conservative Christian voters and consolidate their vote.

    Governance will become unmanageable and compromised by an old constitution with s44 that did not envision how Australian society would evolve. We’re in the throes of working through the last wanks of the skipocracy that have done everything to hold back society, then mask Australia’s diversity with a bland and dull Anglophilia served up by MSM.

  22. Kaye Lee

    “Liberal sources told The Daily Telegraph Ms Banks’ brother, Dr Anthony Lolatgis, registered for citizenship with the Greek Embassy.”

    Question one…why are Liberals leaking about their own to the press?
    Question two…why is the Murdoch press pursuing this? It was Sharri Markson who wrote the story and she is a well known stooge for the Libs (or the “we hate Malcolm” section of them anyway).

    Lawdy lawdy…this lot will turn me into a conspiracy theorist.

  23. paul walter

    “Procrastination is the thief of time”.

    If only I had a dollar for every time my mother told me that.

    I’d by positively wealthy if I included, “Neither a borrower or lender be” ( particularly if I had listened to her ).

  24. Peter

    Turnbull is a fucking lying disgusting and pathetic mother of all gaslighting arseholes. He has no principles to speak of except for unadulterated greed.

    EVERYTHING he and the Coalition touches turns to shit. Renewable energies, our education and health system and the pièce de résistance our National Broadband Network. And he has corrupted the Australian Federal Police using them for witch hunting.

    The enemy of the people are not foreign, its people inside Australia working against Australians. 70% of Australians want marriage equality and they are not getting it. Who’s protecting corruption by preventing an investigation into banking corruption? Is it ISIS?

    The majority of Australians want action on climate change. Who’s stopping this government from doing that? The Assad regime? No.

    Who is ultimately responsible for murdering, torturing and brutalizing people on Nauru? Iran? No, of course not. And who is taking a giant shit on the Australian constitution? Is it al qaeda? No. And who is cutting and slashing wages? It has nothing to do with Islam.

    As I said the enemies of this country are not from outside. They are under our very noses. You want to know who it is, then go no further than Turnbull and is fucking corrupt Liberal Party.

  25. wam

    Arguably the parliament could produce a new constitution that is not an amendment and pass this as the constitution of Australia.

    A law preventing foreign governments from declaring people born in australia would overcome the current problems of all but those born overseas.

    kaye the judges were hard to follow but the seemed to be loose on ‘entitled to’ when cavanan and xenophon greek/pommie were declared aussie. Especially when renouncing doesn’t affect ‘entitlement’.

    The erica syndrome is interesting when the registration says ‘if in doubt seek legal advice’ why would barnaby be in doubt and erica, the loonies and robertson not be in doubt? They should be invoiced for their false declaration.

    Paul, I remember the times when my mum saved till she could buy rather than the glad and sorry but the ‘neither…’ was a cop out it seems to my memory the borrowers invariable were better provided for than us.

    peter it is not hard to find evidence the the majority of australians do not believe that we should be taking action on climate change

    mary says climate change is a natural god given phase and the scientists are blowing in the wind

    WTF happened to global warming a simple ‘hot house’ argument?

  26. paul walter

    wam, dead right. People worked and saved for stuff THEN bought it and valued it.

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