Home > Oz Politics > Most Australians ineligible for Parliament?

Most Australians ineligible for Parliament?

July 26th, 2017

A few weeks ago, I commented adversely on challenges by the ALP to the eligibility of government minister David Gillespie to sit in Parliament, on the basis that he owned a block of shops one of which was leased to an Australia Post branch. Since then, we’ve seen the resignations from Parliament of Greens Senators Ludlum and Waters, and from Cabinet of Senator Canavan. Eligiblity of others remains in question. This has led me to change my view. Instead of trying to make the best of this disastrous system, we should do away with it by constitutional amendment. The only way to make this happen is to enforce the existing provisions in their full absurdity.

According to the ABC, 49 per cent of Australians were born overseas or had a parent born overseas. Add to that everyone employed in the public sector “an office of profit under the Crown”, or who does business with the Commonwealth, and it’s conceivable that a majority of Australians are ineligible to run for election to Parliament. And, while Antony Green thinks it unlikely that pensioners are ineligible, the report he quotes says “However, the meaning of the phrase is not absolutely clear and there are divergent views about its effect.” Speaking personally, although I’ve never seriously considered running for election, I’d also never considered the possibility that, as an academic and ARC Fellow, I’d be ineligible. But it appears that I may be.

Of course, there are steps that can be taken to fix this problem for any individal, but we need a systemic solution.

Obviously, the authors of our Constitution never intended any of this. At the time, there was no separate Australian citizenship, so any British subjec was eligible, which would have solved the problems faced by Ludlum and Waters. And the public sector was much smaller, so the other constraints weren’t nearly as problematic. Age pensions hadn’t been introduced, so the provision against pensioners was meant to exclude personal pensions, granted by the monarch direclty

On the other hand, while the framers guarded against the sources of corruption evident to them, they never anticipated the problems we have now. It’s OK for political parties to be in hock to foreign donors, for someone who has renounced his Australian citizenship to control most of our media, and for careerist politicians to start out as hack staffers, give out favors in office, and cash them out afterwards. But if you don’t do the paperwork to cancel potential citizenship in a country you’ve never seen, you’re out on your ear.

At this point, the situation is so bad that “worse is better”. The best outcome would be for another dozen or two members of Parliament, from all parties, to be thrown out. Then we might get the unanimous support we would need to fix the absurdities of Section 44. Of course, that wouldn’t do anything about the real problems, but at least we would be free of this anti-democratic nonsense.

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  1. JKUU
    July 26th, 2017 at 23:00 | #1

    Quite right John. Reductio ad absurdum. Suppose Congress, smitten with love for OZ, granted US citizenship to all Australians. No Australian, thus entitled, would be eligible to stand for, and sit, in Federal Parliament (states and territories are another matter)! Australian public opinion seems against representation by dual citizens. By all means amend s44(i).

  2. rog
    July 27th, 2017 at 07:18 | #2

    While it is legal to be a dual citizen (dept of immigration and border protection) there exists a difference of opinion between the Crown at state and federal levels as to who is eligible to stand in their respective parliaments.

    One solution offered is to treat it a potential source for conflict of interest, much like pecuniary interest,
    and to maintain a register.

    Nevertheless, there remain considerable difficulties with s 44(i), especially in relation to unknown foreign citizenship. The desirable course, as outlined earlier, is to substitute for this paragraph a provision which adopts a two-pronged approach:

    (i) All candidates must declare in their form of nomination any foreign allegiance of which they are aware; and

    (ii) Any person who, after nominating for election, acknowledges in any way an allegiance to a foreign power, is incapable of being chosen or of sitting as a member

    http://epublications.bond.edu.au/cgi/viewcontent.cgi?article=1170&context=blr

  3. Moz of Yarramulla
    July 27th, 2017 at 08:01 | #3

    I like that solution.

    I am frustrated that once again the ethical people are crippled by their own need to do what’s right, while others are not so constrained.

  4. Paul Norton
    July 27th, 2017 at 09:10 | #4

    Yes, I think that it will take such a train wreck to concentrate our major parties’ minds on reaching broad agreement on amending s44. Even then, if the calibre of discussion on Murdoch press comments thread is anything to go by, there is a reservoir of xenophobic idiocy out there that an unscrupulous populist could appeal to in an attempt to frustrate a referendum on reforming s44.

  5. rog
    July 27th, 2017 at 09:24 | #5

    AFAIK it would take a referendum to change the Constitution so forget it..

  6. July 27th, 2017 at 09:33 | #6

    In an interdependent world, it would make more sense to make dual citizenship a condition for eligibility to high office.

  7. Smith
    July 27th, 2017 at 09:53 | #7

    Good luck getting a referendum passed where the question is whether foreigners should be eligible to sit in the federal parliament, even with bi-partisan support. It’s about as likely as widespread support for legalised pederasty. The major parties, or our political institutions generally, have never been less respected and less trusted. Such a referendum would be a gift to One Nation, which is why it will never happen.

    The unsatisfactory solution, at least on citizenship, is that anyone running for Parliament will have to do some research and if there is even a whiff of possibility of dual citizenship make an effort to renounce that citizenship. Remember the HC has already said that they all they need to do is make the effort.

    On whether university professors are employees of the Commonwealth, it’s OK. The HC, in a different context, has said that they are not. Apparently there is an important distinction between being employed by the Commonwealth and being funded by the Commonwealth.

  8. Moz of Yarramulla
    July 27th, 2017 at 10:55 | #8

    Smith :
    Remember the HC has already said that they all they need to do is make the effort… The HC, in a different context, has said that they are not.

    Damn activist judges, overruling the Will of The People. Shouldn’t be allow… wait, they agree with Great Lord Murdoch? In that case, go ahead, oh great and wise arbiters of all that is good.

  9. Paul Norton
    July 27th, 2017 at 10:57 | #9

    Smith @7, the question is whether all Australians should be eligible to run for and sit in the Federal Parliament, or whether many Australians should be excluded from those rights because of decisions made by foreigners in London, Rome, Dublin, Athens, Moscow, etc.

    Also, until the High Court rules on the final bit of Section 44(1), we don’t know whether, or to what extent, your “unsatisfactory solution” is a solution at all.

  10. Moz of Yarramulla
    July 27th, 2017 at 13:24 | #10

    Given the happy state of foreign relations with our neighbours in the Pacific, and their often limited democracies (which we exploit to our advantage when that suits us. Nauru, PNG {cough}), it’s not beyond possibility that one of those could impose citizenship on members of parliament that offend them.

    Can you imagine the entertainment value if our Minister for refugee matters was overseas negotiating and said “foreign aid doesn’t have to be given” and they responded “we could bestow the gift of citizenship on you. Right now”.

  11. may
    July 27th, 2017 at 13:25 | #11

    wasn’t there something legislated after the last federal election to the effect of limiting individuals eligibility to stand?

    it got through because the greens OKed it?

    as far as i remember the immediate result of that election, as well as a big fright to the (kick and scratch coalition(now, now, may)), the number of candidates made the passing of preferences too slow.

    why that was a problem escaped me, after all, the electoral commission does the work in front of it regardless of the bleatings of the breathlessly urgent commercial news.

    nothing was done about campaign funding such as inequitibility and foreign sources.

  12. Catriona Thoolen
    July 27th, 2017 at 13:40 | #12

    Or toss the whole lot of them and start from scratch…no parties allowed, only independent candidates.

  13. John Turner
    July 27th, 2017 at 13:51 | #13

    @Catriona Thoolen

    I don’t see the relevance of your comment. This has nothing to do with party politics but everything to do with a part of the constitution that in the present day is not fit for purpose.

  14. Alphonse
    July 27th, 2017 at 13:53 | #14

    If a parliamentarian is a member of a bloc-voting party, isn’t the real question whether the party, not the member, owes allegiance to a foreign power?

  15. may
    July 27th, 2017 at 13:58 | #15

    Alphonse :
    If a parliamentarian is a member of a bloc-voting party, isn’t the real question whether the party, not the member, owes allegiance to a foreign power?

    hmmm.

    how about public servant heads of departments?

    wandering into conspiracy territory here, cos lets face it, religions also definitely have form.

  16. John Turner
    July 27th, 2017 at 14:05 | #16

    What is interesting is that one doesn’t have to be a citizen of another country to be barred from standing for elected office, you just need to be “entitled” to be a citizen of another country. So in the present case it doesn’t matter whether his mother informed him or not because his grandparents heritage conferred the ‘entitlement’. The whole situation is absurd and there needs to be a change to the constitution to bring into line with Australia’s present reality as a multicultural nation.

  17. Jim Rose
    July 27th, 2017 at 14:21 | #17

    Clearly, the minority judgement of the High Court is far superior. The notion that foreign law should in most cases be controlling of whether an Australian is eligible for office is wrong. Either taking out the citizenship ceremony which now has a pledge to Australia and its values or writing a nasty letter to the relevant ambassador should be more than enough to renounce your allegiance.

    One senator had to spend $25,000 in legal fees both here and in Iran to renounce his citizenship.

  18. Dan
    July 27th, 2017 at 14:23 | #18

    If the public perceive a referendum as a chance to give the middle finger to the burning tyre heap that is the Australian political establishment – and they would do – you can bet on a spectacularly resounding No.

  19. may
    July 27th, 2017 at 14:36 | #19

    in Holland if you gain citizenship in another state you lose your Dutch citizenship.

    they don’t do dual.

    i kinda like that, the current problem wouldn’t even arise.

    but it could get a problematic if the country renounced refused renunciation and a person found themselves in the position of saying “i no longer accept citizenship of state A because i am a citizen of state B”.

    and state A sez “that’s what you think”.

    (i’m glad i’m not a lawyer)

  20. JG
    July 27th, 2017 at 15:14 | #20

    Hi John,

    I think the framers of the Constitution absolutely intended the consequences we are seeing play out today. There are of course two elements you have referred to (both in s44 of the Constitution). One is the ‘foreign allegiance’ exclusion, the other is the ‘office of profit under the Crown’ exclusion. Both were addressed by the High Court in Sykes v Cleary (which you can find at the link at the bottom of this post), and in a few cases since.

    In relation to the first – even if 49% of people were born overseas (and presumably may therefore have some entitlement to dual or alternative citizenship), that still leaves 51% of us who are stuck here, with no alternative nation state to depend upon (economically, politically, or militarily) both in times of crisis, and for important policy matters (including sensitive matters of national security or economic policy). I am quite comfortable with the idea that those who make laws and policy decisions for the rest of us (including in times of conflict) should not have the comfort of a ‘back-up’ citizenship, should things not turn out for Australia as well as one could hope.

    Further, there are obvious conflicts of interest in allowing Ministers of one State to negotiate trade deals/aid deals/cross-border tax treaties/subsidies etc with another State with whom they alone (but not the majority of their fellow Australians) share citizenship rights. Your comment that “It’s OK for political parties to be in hock to foreign donors” is an argument for tightening party donation rules, not for relaxing constraints on eligibility to run for Parliament.

    Also – it’s not right to say that another State can ‘force’ members of Parliament to resign, by making them citizens. All you need to do is take ‘reasonable steps’ to renounce your dual citizenship. Some states make it impossible to give up citizenship, so as long as you’ve done your best that will probably be enough (again, the facts of each case will change – it will be interesting to see how Canavan’s argument on this pans out, if it gets that far).

    In relation to the second ground – you are right that this excludes quite a number of people, and possibly even yourself, from running for Parliament, while working for government institutions. Sykes v Cleary concerned a teacher with the Education Department of Victoria who had gone on ‘long leave without pay’, which was not sufficient to escape s 44. As for the rationale of the exclusion, at [18] Deane J (albeit in dissent) said:

    “it is undesirable that a person be subjected to the possibly conflicting responsibilities and loyalties and the potential for abuse of power or opportunity which may be involved in, or flow from, concurrent membership of the national Parliament and the holding of an office of profit under the Crown. Implicit in it is a perception of the need to preserve the freedom and independence of the Parliament and to limit the control or influence of the executive government …”

    In short, if you are making decisions regarding Australia Post (its budget, what it can/can’t spend money on, whether it should own land, or lease it, and how much to pay for it etc), and you are also a Landlord for Australia Post, then I think taxpayers can legitimately complain you are conflicted in discharging your parliamentary duties. You only need to look at Trump (who is presently effectively leasing the old Washington Post office to himself) to see why such restrictions are needed (although that is a relatively extreme example, it is a clear illustration of what is sought to be avoided).

    Obviously some cases will be clearer than others, but I don’t think the principles themselves are problematic, and I think generally should be quite strictly enforced. It’s not as if people run for Parliament ‘on a whim’, or that the restrictions in s44 are particularly onerous – Abbott gave up his UK citizenship (probably) with a simple letter or two, and one can only imagine that millions of US citizens now wish they had tighter restrictions over whether members of the executive could hold an ‘office of profit’ (no matter how indirect) under the Government.

    Anyway, just my two cents. The exclusions aren’t exactly ‘fine print’ (they’ve been in the Constitution for over a century) and if you or your political party can’t get it right before you run then you probably shouldn’t be in Parliament!!

    http://www.austlii.edu.au/au/cases/cth/HCA/1992/60.html

  21. hc
    July 27th, 2017 at 16:21 | #21

    I support JG’s comments. There are plenty of choices for Parliament even if dual citizens are excluded and I would prefer out legislators to have only Australian citizenship. Indeed I would ideally strengthen (not weaken) the existing Section 44 and require that Parliamentarians be Australian born. Having Parliamentarians who grow up in Australia and who appreciate our distinctive physical environment and national traits is a virtue.

    The left of politics trivialises the issue of being an Australian and regards promotion of the value of this as an absurd nationalism. I don’t at all. When I look at the Asia Pacific region Australia and New Zealand are the standout countries for democracy, the quality of their legal systems and the extent of multicultural tolerance. Globally I think our only competitors might be Canada and the Scandinavian countries – pretty good competitive democracies. We are a distinctive nation – not international common property – and it makes sense for our legislators to reflect this.

  22. rog
    July 27th, 2017 at 17:44 | #22

    @JG That’s a comprehensive reply JG.

    To clarify, in Australia the duties of the Crown are shared between State and Federal govts however this particular requirement regarding citizenship only applies to the Federal govt.

  23. rog
    July 27th, 2017 at 17:50 | #23

    In NSW to work for the govt you are required to be a citizen for permanent positions but not required for casual. And with outsourcing who knows?

  24. Darryl Rosin
    July 27th, 2017 at 18:59 | #24

    “in Holland if you gain citizenship in another state you lose your Dutch citizenship.
    they don’t do dual.”

    The key term there is “gain”. Dual citizenship is perfectly fine in Dutch law if you are *born* with it. And I don’t believe a Dutch dual citizen is prohibited from being elected to their Parliament.

    This issue keeps turning to a debate about the merits of acquiring dual citizenship while ignoring the problem of people born with dual citizenship. *Both* of which are entirely separate to the question of whether all AUSTRALIANS should be qualified to be elected to Parliament.

  25. Darryl Rosin
    July 27th, 2017 at 19:12 | #25

    “Indeed I would ideally strengthen (not weaken) the existing Section 44 and require that Parliamentarians be Australian born.”

    To be clear, HC, you would exclude from Parliament everyone not born in Australia, and anyone born in Australia with a parent from a jus sanguinis nation, without exception? You are not concerned by Article 25 of the international covenant on civil and political rights?

  26. hc
    July 27th, 2017 at 19:29 | #26

    No, ideally I would require that only citizens of Australia alone who were also born in Australia should be Parliamentarians. That will not happen so I would have to be satisfied with only the first part which is the current Section 44 – Parliamentarians in Australia should be citizens of Australia alone.

    At a minimum legislators in Australia should owe their allegiance to Australia alone – not also to China, not to Italy, Canada, the US or the UK. Now clear?

  27. Darryl Rosin
    July 27th, 2017 at 20:17 | #27

    Clearer, thank-you HC. I am trying to get an understanding of the diversity of views about citizenship and eligibility to be elected to Parliament. I am not on intimate terms with anyone with dual citizenship and I have not turned my mind to these questions before former Senators Dingbat and Nitwit resigned.

  28. Suburbanite
    July 27th, 2017 at 22:27 | #28

    @hc
    Can you point to a specific piece of legislation that you think might have been enacted/not enacted if your all Australian born parliament had been written into the constitution? Can you point to any evidence that would lead you to suppose there would be any substantive difference?

  29. J Richards
    July 27th, 2017 at 23:46 | #29

    Another absurdity is that foreign citizenship is not a bar to joining the federal public service and getting a top secret security clearance, higher than most MPs would be given. Also, I know of people who migrated from China in adulthood with top secret clearances in the Department of Defence. They’ve probably given up their Chinese citizenship, but so what? It just makes a mockery of preventing a lot of people from standing for Parliament, or making give up their dual citizenship unnecessarily, especially in the case of second generation Australian. I speak as a 4th/5th generation citizen.

  30. John Turner
    July 28th, 2017 at 07:50 | #30

    @hc

    This and your previous comment are frankly illogical and xenophobic. What you are suggesting is that people born overseas are in some way lessor citizens and less committed to Australia and its democratic values. This is a ridiculous and unsubstantiated assertion.

    Secondly, emigration to another country involves a great deal of risk and those that have emigrated to Australia ipso facto must have a great deal of determination to succeed.

    There is a lot of evidence (educational success, commercial success, over representation in professional positions etc) to indicate that migrants and their families make a substantial contribution to Australian society proportionately above that of locally born Australian. I suggest you take a good hard look at the ethnicity of the people graduating from our universities with top honours.

    Aren’t these exactly the sort of people we need in Parliament and government? Your suggestion that because of their cultural background people born overseas are less committed to the values of a modern democracy is actually quite offensive and to my admittedly meagre knowledge is not verified by any research. Even if it were true that people born overseas in countries with a less democratic tradition did not subscribe to the democratic values we hold dear (something I would dispute) does this also apply to the many migrants from the UK, Ireland, New Zealand and Europe?

    If you cannot see the absurdity of your position, Australian born or not, you would be the last person I would want representing me in Parliament.

  31. Moz of Yarramulla
    July 28th, 2017 at 08:41 | #31

    hc :
    No, ideally I would require that only citizens of Australia alone who were also born in Australia should be Parliamentarians.

    That has amusing implications for the founding legislators, since as I’m sure you know when the country was started there were no people who had been born here.

    I would much prefer a requirement that all candidates are required to be fluent in a native language. And also in English. Making bilinguality a requirement would hopefully broaden the minds of the members, as well as keeping out the riff-raff.

  32. Smith
    July 28th, 2017 at 08:49 | #32

    @hc

    This is a sound proposition but it does not go far enough. Only Indigenous people should be eligible to be members of the federal parliament. Everybody else is a Johnny-come-lately, a potential fifth columnist, whose loyalty to Australia is suspect.

  33. Paul Norton
    July 28th, 2017 at 09:50 | #33

    Here is my preferred approach to reform of the Australian Constitution.

  34. hc
    July 28th, 2017 at 10:34 | #34

    @Smith

    It does not have that implication at all.

  35. Moz of Yarramulla
    July 28th, 2017 at 10:49 | #35

    @Paul Norton

    I am so glad we’ve made it out of the 1980’s, musically.

    I’ve just been reading about a couple of Te Tiriti negotiations on Aotearoa and it does make me pine for the days when I lived in a country with a legal foundation worthy of the name. I’d love to see that here, rather than “I stole this, it’s mine”.

  36. David Allen
    July 28th, 2017 at 11:39 | #36

    Funny that we’re not hearing from the “law’n’order” crowd on this. The constitution is the most important set of laws in the country. If you ignore them them then why abide by anything? Does anything matter in this degenerate country anymore?

  37. Smith
    July 28th, 2017 at 12:07 | #37

    @hc

    My argument is merely the reductio ad absurdum christ-almighty-now-I’ve-seen-it-all-um extension of yours.

  38. Moz of Yarramulla
    July 28th, 2017 at 12:34 | #38

    @Smith

    That was what I got from your comment. I suspect that Paul Norton responded as he did partly as a continuation of your approach.

  39. hc
    July 28th, 2017 at 12:56 | #39

    @Smith

    it doesn’t even work “merely” as a reducio ad absurdum argument. It is just silly. The suggestion was that, ideally, the Australian born be members of the Australian Parliament. That does not suggest that only indigenous Australians can be MPs. most of the Australian born living in Australia are not indigenous.

  40. Smith
    July 28th, 2017 at 13:57 | #40

    @hc

    On the contrary, your argument for only Aussie-born MPs is

    “Having Parliamentarians who grow up in Australia and who appreciate our distinctive physical environment and national traits is a virtue.”

    Extending the argument, one could just as well argue “Having Parliamentarians who grow up in Australia and who had parents who grew up in Australia and who appreciate our distinctive physical environment and national traits is a virtue.” Surely (on your argument), if you had Australian-born parents you’d be more likely to have drummed into you our national traits than if your parents were migrants.

    Extending further, …”and who also had grandparents who grew up in Australia…”.

    We can extend all the way back to 26 January 1788. But this is a completely arbitrary stopping point, especially for your criterion of appreciating our distinctive physical environment. The only logical solution – at least on your argument – is with the original Australians, so only their descendants can sit in the Parliament.

  41. Troy Prideaux
    July 28th, 2017 at 14:14 | #41

    We really don’t need any of those rotten foreign infected MPs who can sell us out… we can produce plenty of homegrown ones quite capable of doing that thank you very much (Mark Vaile, Andrew Robb, Joel Fitzgibbon, Craig Emerson to name a few) [winks]

  42. may
    July 28th, 2017 at 15:20 | #42

    Darryl Rosin :
    “in Holland if you gain citizenship in another state you lose your Dutch citizenship.
    they don’t do dual.”
    The key term there is “gain”. Dual citizenship is perfectly fine in Dutch law if you are *born* with it. And I don’t believe a Dutch dual citizen is prohibited from being elected to their Parliament.
    This issue keeps turning to a debate about the merits of acquiring dual citizenship while ignoring the problem of people born with dual citizenship. *Both* of which are entirely separate to the question of whether all AUSTRALIANS should be qualified to be elected to Parliament.

    are you sure about a Dutch person being able to keep Dutch citizenship on obtaining citizenship in another country?

    my comment about that was based on the experience of a person i know who was born in Holland and on obtaining Australian citizenship forfeited the Dutch citizenship.

    who when going to Holland to visit family had to obtain a visa as an Australian citizen.

    so as an Australian citizen could not stand(hypothetically) for election in Holland.

  43. may
    July 28th, 2017 at 15:24 | #43

    hc :
    No, ideally I would require that only citizens of Australia alone who were also born in Australia should be Parliamentarians. That will not happen so I would have to be satisfied with only the first part which is the current Section 44 – Parliamentarians in Australia should be citizens of Australia alone.
    At a minimum legislators in Australia should owe their allegiance to Australia alone – not also to China, not to Italy, Canada, the US or the UK. Now clear?

    what happens if some one is born in Oz and leaves as a baby, not returning until an adult raised in a culture inimical to Australian (type?)culture?

  44. Darryl Rosin
    July 28th, 2017 at 16:52 | #44

    May, as you describe it, you friend ‘acquired’ citizenship. A child born to Dutch parents in the USA would be a dual Dutch-American citizen at birth. They would not be ‘acquiring’ any citizenship. (Anyone born on American soil is an American citizen at birth) Perhaps relevant to your story is the fact that children born to Australian parents overseas are not Australian citizens at birth. Their citizenship must be applied for.

  45. J-D
    July 28th, 2017 at 19:21 | #45

    I agree with John Quiggin, but would not have bothered posting this comment just to say that. The thought that goes through my mind that nobody seems to have touched on is that I suspect many Liberals and Nationals will be resistant to the idea of any sort of change to the Constitutional provisions because they fear that once you change the Constitution you will give people the idea that it can be changed again, and they wouldn’t want that.

  46. Smith
    July 28th, 2017 at 19:28 | #46

    @may

    Indeed. Born in Australia to Islamist parents, leave Australia as a baby and raised among the Taliban in Afghsnistan, return to Australia as an adult, full of hateful ideology. On the hc criteria, you are in.

    Born in New Zealand to Australian parents, come to Australia as a baby, live your life as an Australian, renounce your NZ citizenship. On the hc criteria, you are out.

  47. Moz of Yarramulla
    July 28th, 2017 at 20:05 | #47

    “culture inimical to Australia”… I suggest that the USA counts, and like the UK as well. Vatican City definitely does, but I don’t think we’ve had that one crop up ever.

    The trick is to not elect them. I’m quite tempted by the absolutist opposite position on this: anyone, absolutely anyone at all, should be qualified to stand for election. If the voters choose that person, they’ve in. The end. We could call this “the voters decide”, with the current law and other opposite positions called “the current government gets to decide who is permitted to run against it”…

  48. July 28th, 2017 at 21:10 | #48

    The cases of Scott Ludlum and Larissa Waters are absurd (as may well be equally true in relation to Malcolm Roberts). I was attributing both the British and Australian interest in nationality and citizenship to the recent Indian Independence, but it seems the Canadians established their legislation in 1946. The notion of a foreign government has been reinterpreted from original meaning by the High Court. People who hold dual nationality with NZ and Canada (I imagine) are required to fulfill residency requirements before they can participate in elections. In the case of Australian in NZ they have to meet the same requirements as NZers. If I have this right (and how could I?), it would in practice mean that all Australians are dual nationals. The obvious point in regard to former senators Ludlam and especially Waters, they may qualify as nations but not as citizens and alliance and social conditioning is non-existant. A multi-cultural society should welcome diversity, a point that the majority decision of the High Court may have overlooked.

  49. Luke Elford
    July 28th, 2017 at 21:28 | #49

    @Moz of Yarramulla

    The paper that rog linked to at #2 mentions a case in which a

    “…challenge [was] brought under s44(i) to the election of a Roman Catholic to the House of Representatives in 1949. In Crittenden v Anderson, the respondent’s election was challenged on the basis that as a Roman Catholic, he was disqualified for being ‘under acknowledgment of adherence, obedience and/or allegiance to a foreign power’, namely, the Papal State. Noting its effect would be to disqualify all Roman Catholics from the Commonwealth Parliament, Fullagar J relied on s116 of the Commonwealth Constitution to reject the challenge on the basis that it amounted to a religious test which s116 prohibited as a ‘qualification for any office or public trust under the Commonwealth’.”

    I too am tempted by no-holds-barred passive suffrage (with very few exceptions, such as those currently in prison). Virtually all attempts to limit the rights of individuals to stand for election are fairly transparent efforts to strengthen the hand of some groups in society at the expense of other (usually already marginalised) groups; the nebulous notion of a shared national interest is waved about as misdirection, despite the fact that shared interests are rarely a focus for political decision-making. This is evidenced as much in this comments thread as it is in the above court case.

    Democracy already provides a method by which people can determine what sort of person will represent them—voting—and it’s a right that can be exercised without concomitantly denying the same right to others.

  50. J.H.
    July 29th, 2017 at 02:33 | #50

    @hc
    Anyone born in Australia would be Indigenous…. It is what the word means.

  51. rog
    July 29th, 2017 at 06:59 | #51

    @J.H.
    Indigenous means the original inhabitants, not the more recent arrivals (for a legal perspective refer to Mabo and Native Title Act).

  52. Paul Norton
    July 29th, 2017 at 07:39 | #52

    J-D @45: “The thought that goes through my mind that nobody seems to have touched on is that I suspect many Liberals and Nationals will be resistant to the idea of any sort of change to the Constitutional provisions because they fear that once you change the Constitution you will give people the idea that it can be changed again, and they wouldn’t want that.”

    I share this suspicion. It obliquely reminds me of a thought I had during the Republic referendum debate nearly 20 years ago, which was that the Manichaean intensity with which the idea of a directly elected symbolic head of state was attacked was out of all proportion to the actual difficulties or potential consequences of Australia doing something which the Irish, the Finns and the Austrians have all been able to do without mishap. The conclusion I came to was that the underlying source of the fierceness of the resistance had less to do with the specific issue of directly electing a symbolic head of state than it did with the fear that if the little people were allowed to vote directly on a little issue they might develop an appetite for voting and otherwise participating in decisions on big issues.

  53. Mark Rowland
    July 29th, 2017 at 10:29 | #53

    Politicians who live in grass houses shouldn’t stow thrones. Fear of Kiwis in green shirts has pissed off pollies who possessed a passing knowledge of section 44. See that bit about having the right to citizenship of some other power? Many who have a parent from the EU might now be searching their passport. Great stuff or stuff-up.

  54. Collin Street
    July 29th, 2017 at 11:29 | #54

    David Allen :
    Funny that we’re not hearing from the “law’n’order” crowd on this. The constitution is the most important set of laws in the country. If you ignore them them then why abide by anything? Does anything matter in this degenerate country anymore?

    See the construction “law and order”. See that it’s not, simply, “law”; see that from the perspective of a “law-and-order type” obedience to the law is either not sufficient or not necessary.

    [A person’s words reflect all their thoughts, including thoughts they are unaware of or trying to conceal.]

  55. may
    July 29th, 2017 at 13:54 | #55

    J.H. :
    @hc
    Anyone born in Australia would be Indigenous…. It is what the word means.

    indigenous = original inhabitant

    native = born and matured in situ inhabitant.

    as my neighbors are indigenous ancestry and native to this place and i am native only.

  56. may
    July 29th, 2017 at 13:58 | #56

    Darryl Rosin :
    May, as you describe it, you friend ‘acquired’ citizenship. A child born to Dutch parents in the USA would be a dual Dutch-American citizen at birth. They would not be ‘acquiring’ any citizenship. (Anyone born on American soil is an American citizen at birth) Perhaps relevant to your story is the fact that children born to Australian parents overseas are not Australian citizens at birth. Their citizenship must be applied for.

    but then the Dutch would not recognise and accept that the duality exists and the Dutch citizenship, in their eyes, would not exist?

  57. hc
    July 29th, 2017 at 21:15 | #57

    One question that can be asked is why so many “new” Australians become MPs? What is up with the 50% native borne in the population? One would think that living here longer term provides some comparative knowledge and networking advantages over recent arrivals.

    Ditto for VCs at Australian Universities and our CEOs. Why are there, for example, so many Brits? Do we need the more cultivated and urbane Brits to keep the riff-raff, native-born Aussies firmly in line?

  58. John Turner
    July 29th, 2017 at 23:18 | #58

    @hc

    Refer to my earlier comment dated 28 July at 07.50 – it may give you a clue as to the answer to your question.

  59. Dan
    July 30th, 2017 at 08:44 | #59

    @Moz of Yarramulla

    “That has amusing implications for the founding legislators, since as I’m sure you know when the country was started there were no people who had been born here.”

    Apart from an aggregate of millions over 65,000-85,000 years – with legal systems predatory the Constitution by a similar period. I know what you meant, but please, a little precision.

  60. Darryl Rosin
    July 30th, 2017 at 11:21 | #60

    “but then the Dutch would not recognise and accept that the duality exists and the Dutch citizenship, in their eyes, would not exist?”

    May, my understanding is that Dutch law provides that Dutch citizens living overseas for an extended period of time may lose their Dutch citizenship if and only if they hold other citizenship. This implies a recognition in Dutch law that there exist Dutch nationals with multiple citizenship.

    Whenever you hear “country X doesn’t allow dual citizens” it’s a pretty safe bet that means country X has restrictions on the *acquisition* of dual citizenship. Which, incidentally, was the case in Australian until 2002 when the law was changed to permit Rupert Murdoch to become an American citizen without losing his Au citizenship.American citizen

  61. Moz of Yarramulla
    July 30th, 2017 at 13:36 | #61

    Dan :
    I know what you meant, but please, a little precision.

    I was being precise. I could have said “no Australian born citizens” but that would let our racist friends agree with me too easily. Until we resolve that particular question I think it’s worth bringing it every time. Was it a war of occupation (terror enormous) or moving into a land without people (terra nullius). In some ways voting rights are the least of it, in other ways they’re an important symbol of the symbolic progress we’ve made.

  62. Fran Barlow
    July 31st, 2017 at 07:52 | #62

    Up front, IMO, all of s44 should go. Initially, I’d considered leaving the crime exclusion in but really, it’s not worth it. If the parliament wants to exclude those who have committed certain classes of crime or any crime then it can certainly elect to do so. As Luke says above, voters should decide who is fit to represent or not represent them.

    For a long time I realised that a substantial proportion, probably a majority, of the folk I know at least reasonably well, were excluded from standing for parliament under S44. Many are teachers of course but some like me are excluded on another ground — being at least in part of foreign descent. Like Senator Canavan, I have an Italian parent, and in consequence hold Iralian citizenship. I have an (expired) Italian passport. I hadn’t thought about it much until recently, because I don’t think of myself as Italian and pay only passing attention to its politics.

    I was much more Italian as a child, because in those days you copped racial abuse every day for it. I had little good alternative, existentially, to embracing it and making it a virtue, until I was old enough to read History and to begin to unpack the poison of patriotism. Animus towards Italians eased greatly during the 80s and by the late 80s it was borderline chic to be of Italian descent. Other identities though — Aboriginal, Asian, Muslim — were still derogated. By the time I was assigned to my current school, I was for all intents and purposes ‘white’ so that when I reprimanded some errant Year 9 student of Italian descent in my first week there, his reflexive appeal was to cry animus towards ‘w*gs’. I laughed inwardly at the absurdity, and pointed out to him, in Italian, the absurdity of the claim.

    I have long mused at the possibility of standing for parliament after I retire, but it seems that even then, if I wish to, I will be obliged to cast off a part of my formative experience — resisting conformity to the racist mores of the 1960s. It is not too much to say that had I been allowed then to simply join the mass, I might never have been moved to reflect on what it meant to be human. So as much as I resented the abuse and came to reject patriotism, I feel offended that some perverse xenophobic provision uttered by folk who were racist on multiple grounds should demand that I deny part of who I am as part of exercising citizenship. How dare they?

    Junk it all, I say. Let the voter decide. If someone thinks being of Italian descent ought to exclude me, then let it be on them. It’s probably no worse than being a teacher.

  63. rog
    July 31st, 2017 at 08:14 | #63

    @Fran Barlow I agree, the “crime” should be limited to failure to disclose prior to election – let the voters decide on the facts.

  64. Fran Barlow
    July 31st, 2017 at 08:40 | #64

    @rog

    I’d also be relaxed about confessing to being a schoolteacher.

  65. Smith
    July 31st, 2017 at 10:13 | #65

    @Fran Barlow

    “I have long mused at the possibility of standing for parliament after I retire”

    If, as you appear to be, old enough to be on the old teachers’ pension scheme you might be ruled out for that reason. Of course you can always stand for parliament. The problem only arises in practice if you win.

  66. Fran Barlow
    July 31st, 2017 at 11:57 | #66

    I started teaching too late for the old scheme (1988) , so I’m on the middle one. IAE, i am rubbed out on ethnic grounds, so it’s moot.

    I am not sure if super rubs you out though, even if it’s an annuity, as technically, you don’t have an ‘office’ of profit and your super us regarded as yours rather than a gift of the department. So far, nobody has tested that one, AIUI.

  67. Smith
    July 31st, 2017 at 13:00 | #67

    @Fran Barlow

    You might well be right but nothing is settled under the High Court decides. Hopefully in the Canavan case the HC won’t confine itself to the facts in that case and will lay down some law that can be applied to everyone.

  68. Dan
    July 31st, 2017 at 18:14 | #68

    @Moz of Yarramulla

    Predating. Mea culpa. Autocorrect on phone.

  69. Collin Street
    July 31st, 2017 at 19:18 | #69

    @Smith

    Just as a point, but the “pensions” exclusion only applies to “any pension payable during the pleasure of the Crown”; statutory or contractualy-established pensions probably don’t fall under this, if the government doesn’t have the option of not paying.

    @Fran: there’s no general “crime” exclusion; it only applies to people Actually In Jail or potentially so, and even then it’s only if it’s for more than a year. “Has been convicted and is under sentence“; at the expiry of the term of sentence you’re free and clear.

  70. Smith
    July 31st, 2017 at 20:23 | #70

    @Collin Street

    One current Senator, Derry Hinch, has three criminal convictions and twice has spent time in jail. It was his notoriety that got him elected.

  71. Fran Barlow
    July 31st, 2017 at 22:50 | #71

    @Collin Street

    Ah fair enough then. Still, the parliament certainly has the power to address that.

  72. Fran Barlow
    August 1st, 2017 at 14:08 | #72

    The other thing that is odd about s44 is that it breaks an important principle of representative governance — that if you’re qualified to vote, you’re qualified to stand. After all, the MPs are supposed in some broad sense to share this attribute with the masses.

    But if they really believe that those of us who through an accident of birth – not even necessarily our own — are an incipiently existential threat to good governance, they we ought to be barred from voting too. Really, we are tainting the vote. That goes for us public servants too.

    In NSW you can’t stand for Council if you’re a property developer or have close connections with them. That seems to me a reasonable exception as there is a clear conflict of interest and the means to enliven the harm. Were it practicable, I’d exclude them from voting as well. It probably isn’t though but as a matter of principle, one ought to be consistent.

  73. August 3rd, 2017 at 04:03 | #73

    Nobody will see this, but I am wondering whether it is mandatory of referenda questions to posed on a Yes/No basis. Why should not the various sub sections of S.44 be posed with a series of possible options which could then be voted in accordance to voters preferences, as they do with candidatates for House of Reps Divisions. If possible, this might make constitutional change more possible and engaging.

  74. Fran Barlow
    August 3rd, 2017 at 14:43 | #74

    @wmmbb

    In principle, it’s an excellent idea, but I doubt it would get past the wording of s128. You’d probably need to change that expressly first — possibly at the same referendum.

  75. August 3rd, 2017 at 21:02 | #75

    Thanks Fran. I have to admit I have not looked at the Constitution for years. However, s.128 does say:”When the proposed law (for alteration) is submitted to the electors, the vote shall be taken in such a manner as the Parliament prescribes.” I think you are right, but it seems at least possible, and would be subject to the ruling of the High Court, who in the light of judgments in relation to s.44 – the difference between Roman Law and Common Law in relation to citizenship, may look favourably on such proposal. That presupposes Parliament would be of that mind.

  76. Collin Street
    August 4th, 2017 at 20:11 | #76

    Ah fair enough then. Still, the parliament certainly has the power to address that.

    + It’s in the constitution, so it’d need a referendum to change,
    + there are I think genuine practical problems with serving simultaneously as a parliamentarian and a prisoner simultaneously that should probably be resolved in some way before we move forward.

    Some of the constitution is boilerplate, but really not an awful lot; almost all of it was included as a result of careful consideration of alternatives, problems-to-be-averted, etc. There’s a fair case to be made that the problems the citizenship provisions were meant to avert are no longer issues or are outweighed by worse problems, but for the prisoner clauses making that sort of case is I think substantially harder.

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