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A thought experiment

February 7th, 2018

Suppose that the Constitution had made judges subject to the same eligibility requirements as MPs. How would the High Court have ruled in the cases that came before it?

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  1. NathanA
    February 7th, 2018 at 18:51 | #1

    I won’t volunteer my exact thoughts on this, but I would say that I’d have no hesitation in voting for a party that committed to a Royal Commission into the legal system, complete with an avenue for submissions by people who feel they’ve been stiffed by lawyers. I’m sure the lawyers would have nothing to hide or fear……

  2. John Goss
    February 7th, 2018 at 19:19 | #2

    I don’t think their rulings would have been any different. I think the High Court rulings so far have been in line with the Constitution, and in addition they have been helpful in departing from a black letter law view, by stating that the renunciation of any dual citizenship can not be held hostage to the decisions or administrative processes of a foreign government. There is still some lack of clarity as to what constitutes reasonable steps to renounce citizenship, but that is partly because there haven’t been many cases referred to them in which they have had to decide what reasonable steps are. Their decision on ex Senator Roberts gave us some indication as to what they think reasonable steps are, and the decision on Senator Gallagher will give us some more information. But it does seem to be a cumbersome process.
    I don’t know why they can’t just unilaterally make a ruling as to what they consider reasonable steps to be.

  3. Newtownian
    February 7th, 2018 at 20:42 | #3

    It doesnt seem to be a plausible counterfactual as prior to Whitlam and for some time thereafter as I understand it the ultimate court in the land was the UK privy council and arguably earlier.

    https://en.wikipedia.org/wiki/Nigel_Bowen#Political_career
    https://en.wikipedia.org/wiki/Australia_Act_1986

    And the judges by definition should have all been poms.

  4. Oliver Townshend
    February 7th, 2018 at 20:52 | #4

    A judge, being a qualified lawyer aware of precedent would be treated even more harshly than a politician, since by their superior knowledge they could not sure they steer unaware of the legal implications.

  5. Henry Haszler
    February 7th, 2018 at 20:55 | #5

    The Full Bench would then perhaps have been very small.

  6. boconnor
    February 8th, 2018 at 07:35 | #6

    I would think that any judges sitting under that thought experiment rule would be very careful to have their paperwork in order. And it would take only one judge being dismissed from the court to get the message absolutely firmly relayed to potential candidates. So on that basis their rulings on politicians might be even hasher given they would be able to say “We sit here under the same rules as you”.

  7. Ikonoclast
    February 8th, 2018 at 08:45 | #7

    There is something to be said for black-letter (constitutional) law in some cases. This might be one of them. I see no problem with requiring a person to be born in Australia, and an Australian citizen, and not a citizen of any other country by their own express actions and applications, to be qualified to run for a seat in Federal Parliament.

    I see no reason why New Australians ought to have an automatic right to become a member of Parliament. They will have the vote and their children meeting the above criteria will have the right to run for Parliament. Don’t cry me a river for their loss of rights in such cases. The deal would be made explicit in the immigration process. Like any deal, if you don’t like the whole package you don’t have to accept the deal.

  8. February 8th, 2018 at 09:16 | #8

    Simply, we do not want two classes of citizens in this country. Naturalised citizens should be in every respect equal to those born within the jurisdiction. Anything short of that risks affecting their commitment to the national compact.

    It is not, of course, the case that parliamentarians have to be born in Australia, and there are clear racial and angloceltic messages in requiring such a stipulation.

    Furthermore, even if one were to agree that an MP should be “not a citizen of any other country by their own express actions and applications”, that’s not the current situation. As someone’s just pointed out, there’s a reasonable case that no jew (under Israeli definitions) can be in parliament, as being entitled to Israeli citizenship.

  9. Smith
    February 8th, 2018 at 09:42 | #9

    The implicit attack on the integrity of judges in the OP is Dutton-esque. Is that you Peter?

  10. Smith
    February 8th, 2018 at 09:49 | #10

    @Ikonoclast

    “I see no reason why New Australians ought to have an automatic right to become members of Parliament”

    This might be the reactionary thing I have read on the Internet in five years. “New Australians”? FMD. 1950 rang. It wants its bigotry back.

  11. Moz of Yarramulla
    February 8th, 2018 at 09:57 | #11

    @Ikonoclast

    Why only one generation? Kids born to immigrants often run wild, as we saw with the Italian mobsters, the Viet drug gangs, the Iraqi rapists, and now the latest panic in Melbourne. All of that is sold grounds to require all grandparents of MPs to be Australian, surely. Possibly ABAs (Australian Born Australians).

    And following Prof Q, you’d surely apply that rule to judges as well. But just to be safe, all government employees.

    We can’t be too safe.

  12. Moz of Yarramulla
    February 8th, 2018 at 09:58 | #12

    Actually, perhaps only real Australians should be allowed in Parliament… all four of them

  13. Moz of Yarramulla
    February 8th, 2018 at 10:00 | #13

    @Chris

    Chris :
    there’s a reasonable case that no jew (under Israeli definitions) can be in parliament, as being entitled to Israeli citizenship.

    That’s not correct – they can convert to a non-approved form of Judaism and they will no longer have the right of return.

  14. Smith
    February 8th, 2018 at 10:58 | #14

    @Moz of Yarramulla

    Yeah but even they have a bit of Irish in them, or whatever.

  15. Moz of Yarramulla
    February 8th, 2018 at 11:05 | #15

    @Smith

    Now you’re just being silly. Billy Conolly was a fine upstanding figure of a man, and like many of his countrymen surely would have made a fine MP or judge.

    To be serious for a moment, I too suspect that high court judges would have been more careful than MPs to tick all the boxes, and there may well have been a referendum much earlier to fix that problem. All you’d need is one respected judge ready to fill the vacancy except for the technical problem of being Jewish/Hungarian/English or whatever and there’d be quiet agitation for change. It would be both technical and non-political, so likely non-controversial and likely to pass easily.

  16. Smith
    February 8th, 2018 at 13:03 | #16

    @Moz of Yarramulla

    They would be more careful. Lawyers in general are very particular about being on the right side of the law, since their first duty is to the Court, and they can be kicked out of the legal profession if they are convicted of just about anything. Some lawyers – I kid you not – are so anally retentive they report their parking fines to their state law council.

    Of course the point of the thought experiment was that if this part of the Constitution applied to them (and their mates), the High Court judges would have interpreted it differently so that they would have been in the clear come what may, because as we know (from Sky News, 2GB, Murdoch columnists and other authoritative sources), judges are self-serving, out of touch elites.

  17. Moz of Yarramulla
    February 8th, 2018 at 13:18 | #17

    I do understand the thought experiment, which is why I suggest that the problem would have been brought up earlier and probably solved relatively quickly. Possibly the court would have decided that the whole thing meant actual citizenship, or employment (per the emoluments clause) rather than the terrible “is eligible at time of nomination or becomes eligible later”.

    I still think that the funniest part of this is that every single MP has sworn allegiance to a foreign monarch and if the court was so inclined that could disqualify them. You can wave all the technical mumbo-jumbo at me that you want, but The Queen of New Zealand And Sundry Other Places lives in England and you’re not going to convince me otherwise.

  18. Smith
    February 8th, 2018 at 13:45 | #18

    @Moz of Yarramulla

    Gough Whitlam made her, legally and officially, Queen of Australia.

    And, besides, she doesn’t just live in England. She has a couple of palaces/castles in Scotland.

  19. Moz of Yarramulla
    February 8th, 2018 at 14:02 | #19

    If having dual citizenship is a problem our MPs surely it must also be a problem for the monarch. One rule and all that (I can hear Russel Howard saying “One does indeed rule” in this manner: https://www.youtube.com/watch?v=M4BHlB4AMa0).

    According to Wikipedia Whitlam actually made her “Queen Elizabeth the Second, by the Grace of God Queen of {insert as appropriate} and of Her other Realms and Territories, Head of the Commonwealth, Defender of the Faith”. Yes, we have an honest-to-god fill in the blanks ruler. I can only hope we end up with King Harry who strikes me as mostly likely to carry that one through to its logical conclusion and insist on being called “King Harry, blah blah insert name here”, and presumably “insert” for short.

  20. Ikonoclast
    February 8th, 2018 at 14:04 | #20

    I knew I would draw a flame war with my proposal, although that was not my intent. I also suspected I would draw the “racist” and “anglo-centric” judgements. I will try to make my points logically. There are moral flaws in my position but I would argue that in the real world you can never make legal law without moral flaws in it. The point is to make it legally and socially workable and also importantly with as few moral flaws as possible. People who don’t understand this “legally workable with the least moral flaws possible” argument do not understand that no human law can be perfect. Either you must accept imperfect law with as few moral imperfections as possible or you must reject all law altogether and go for an absolute anarchist position. To do otherwise is to be philosophically and logically inconsistent.

    (1) The position is not racist. Any Australian born person, not matter what race, including indigenous Australians, would be eligible.

    (2) The position is not Anglo-centric. A white person born in the UK would be as inelgible as an any coloured person born in any other country.

    (3) To assume one can move to a new country and new culture and immediately be qualified to play a part in running it formally at Federal Government level is a dubious assumption. If I was accepted as a citizen of some other country and culture I would assume that not having a fully lived experience of that country’s culture, I would not really understand it and would not be fully qualified to take a part in Federal governance as an elected representative (assuming it was a democracy).

    (4) To assume that as a democratic nation and culture we reserve no value on our own lived experience is essentially to devalue it.

    (5) Voluntary immigrants are taking a voluntary deal. If that deal included ALL rights including the right to vote but not first generation rights to enter Federal Parliament then then they always have the right to accept or not accept that deal. Refugees, who I would make much more welcome than currently, would also view this (all other rights except this one) in toto as a very good deal. Of course, I would not extend the preclusion to their Australian born children. So, such sarcasm hits no real target.

    (6) It is the realistic case, the real world realpolitik case, (though none here will want to admit such realism) that many first generation immigrants do have strongly divided loyalties and do have conflicts of interest in terms of any national interest “test”. These loyalties and old country identifications decay so rapidly by one generation that we can effectively accept that Australian born children are not significantly affected by them.

    (7) Is the “right” to be a Federal Parliamentarian such a wonderful right? Few of us want to be one. Few of us seek to be one. Few of us respect those who are. I certainly don’t respect any of them. It is an office more used for self aggrandizement and self service of class and cultural loyalty than for the good of the nation. Actually, the desire to be a politician is probably a good sign a person is not fit to be one.

  21. Smith
    February 8th, 2018 at 14:17 | #21

    @Ikonoclast

    Most of these arguments could have been put (in the distant past) by the most chauvinistic elements of the RSL, and probably were.

  22. rog
    February 8th, 2018 at 16:01 | #22

    When you look at section 44, item (I) precludes anyone who may have made “any acknowledgement of allegiance..to a foreign power” whereas item (ii) only disqualifies those who have been convicted of a crime and are “under sentence, or subject to be sentenced”. This seems to not include crimes who have done their time.

    If I’m right this whole section needs major revision as it discriminates against those professing a loyalty (I did but see her passing by …) and does not apply to those in the law, military or public service.

  23. Ikonoclast
    February 8th, 2018 at 16:03 | #23

    @Smith

    I’m yet to see any argument from you apart from argumentum ad hominem.

  24. Smith
    February 8th, 2018 at 16:41 | #24

    @Ikonoclast

    It’s all you deserve. But if you want to a friendlier reception to your Aussie! Aussie! Aussie! Oi! Oi! Oi! theory of parliamentary representation there are any number of dark corners of the Internet that will make you feel right a home.

  25. rog
    February 8th, 2018 at 16:48 | #25

    @rog Whoops, I meant crims who have done their time.

    So what does this indicate what was going on in the draftees minds? That’s it’s ok if you have done your time? It seems to me they were pretty lenient on criminals and that this leniency should be extended to national allegiances.

  26. Julie Thomas
    February 8th, 2018 at 17:01 | #26

    @Smith

    “It’s all you deserve.”

    Wow that’s so awesome. Did you find that riposte in the dark corners of the internet or the dark corners of your mind?

  27. may
    February 8th, 2018 at 17:44 | #27

    Smith :
    @Moz of Yarramulla
    Gough Whitlam made her, legally and officially, Queen of Australia.
    And, besides, she doesn’t just live in England. She has a couple of palaces/castles in Scotland.

    who cares where they live.

    as long as they reign not rule and are taking up the space our very own “wanna-be-trumputinkims would lurve to own.

    long live tha “queens chain” (or kings,in the fullness of time)

    i reckon they are good value for money and hold the breach on selling the beach.

    and on topic:

    hypothetical and what if?

    in any case,

    having the top judges off the bench at seventy has my thumbs up.

    Oz has a deep pool of judgey experience to back up the ones currently seated which is a “good thing”

    unlike the US population who get stuck with some doozys who sit for life and seem to nevah-evah die.

  28. February 8th, 2018 at 23:52 | #28

    Ikonoklast: do you think Mark Carney, a Canadian, should have been disqualified from becoming Governor of the Bank of England? By any measure, it’s far more powerful position from that of backbench MP.

  29. Collin Street
    February 9th, 2018 at 05:42 | #29

    So what does this indicate what was going on in the draftees minds? That’s it’s ok if you have done your time? It seems to me they were pretty lenient on criminals and that this leniency should be extended to national allegiances.

    The passive voice here masks a huge disconnect; the agent of “should be extended” can’t be “the people who framed the constitution”, because plainly they considered the matter and plainly they thought otherwise. You might argue that they were wrong, but arguments-by-similarity-and-metaphor don’t actually get you there; similarity isn’t identity.

    So the people who “should do the extending” has to be “us”, and in that case all the prelude is… not stuff we have to be bound by. Constitutional amendments are what we want, what dead people think is ultimately irrelevant.

    [ultimately, your argument is “We should do A in situation B because people like us did A in a situation like B”; this isn’t compelling, because the two “likes” allow gaps.]

  30. Moz of Yarramulla
    February 9th, 2018 at 07:32 | #30

    Ikonoclast :
    (1) The position is not racist.

    A general rule of thumb is that any time you have to explicitly say something like that, it’s because your claim is dubious. It doesn’t matter whether you’re saying “the cake I made is delicious” or “my child is very intelligent”, just saying it creates grounds for the listener to think “hmm, I wonder if that’s true”. You’re much better off letting people decide for themselves. In this case you can perhaps console yourself with the knowledge that George Brandis has your back.

    On pragmatic grounds I favour the Aotearoa approach of giving permanent residents the vote and allowing any adult citizen to stand for parliament. I’m dubious about the latter restrictions though, I think the voters should be the ones who decide. If they want to elect a donkey, or a fictional cat, that’s up to them.

    What should be banned is misrepresentation. I favour a fairly broad ability to sue to fraud and have MPs disqualified and ejected f convicted. It would need to be balanced against the use to nuisance suits, but I think that discussion is worth having.

    The only sympathy I have for your position is the one I mentioned above: at least some seats should be restricted to real Australians. I’d say “that’s the least we can do” but that would be a blatant falsehood, we currently do less than that.

  31. Smith
    February 9th, 2018 at 08:25 | #31

    @may

    “having the top judges off the bench at seventy has my thumbs up.”

    Compulsory retirement at 70 was reasonable when it was put in the Constitution in 1977. But 70 then is like 80 now. Many judges who leave at 70 go on to have another 10 years of distinguished legal career, including as judges in other countries.

  32. Smith
    February 9th, 2018 at 08:27 | #32

    @Moz of Yarramulla

    “A general rule of thumb is that any time you have to explicitly say something like that, it’s because your claim is dubious.”

    In context, and oldie but a goodie is “I’m not racist. Some of my best friend are […].”

  33. Moz of Yarramulla
    February 9th, 2018 at 09:04 | #33

    @Smith

    I’m not elitist, some of my best friends are morons.

  34. Ikonoclast
    February 9th, 2018 at 09:09 | #34

    @Moz of Yarramulla

    The thing about rules of thumb is that they are only a rough guide and they are often wrong.

    The rule I advocate is not racist. I have shown how it is not racist in that it does not discriminate against people on the basis of skin color. It discriminates against people on the basis of place of birth (and therefore on conferred primary nationality).

    Thus the rule I advocate is nationalist, not racist. If you were to argue against its nationalist basis, not its incorrectly supposed racist basis, then you would be on more supportable grounds. If my position is to be argued against on the evidence, I ought to be argued against for the nationalist basis of my position. I can be criticised as a nationalist chauvinist but not as a racist chauvinist on this position.

    In practice, we are all or mostly nationalists, of greater or lesser degrees. We benefit from being citizens of our nation state (Australia in this case) and we all support at least some policies and institutions which maintain this nation state and which maintain our rights and privileges as citizens of this nation state. To pretend otherwise is mere moral vanity and indeed rank hypocrisy.

    To speak further on these matters, Noel Pearson once said, IIRC, “everybody is a racist” or words to that effect. To put his statement in context, he recognized degrees of racism, the battle everyone must fight against it internally as well as externally, and the battle to not let racism be institutionalized or legalized.

    Again, those who use the racist epithet too freely, without due care, and pretend to absolutely pure non-racism themselves are self-deluded and suffering from excess moral vanity.

  35. Ikonoclast
    February 9th, 2018 at 09:25 | #35
  36. Moz of Yarramulla
    February 9th, 2018 at 10:10 | #36

    @Ikonoclast

    I pointed out that you’re flaunting your insecurities. Your suggestions are at best ahistorical, and require the sort of suspension of disbelief Barnaby Joyce is asking for (he only lies to his wife and daughters, it’s only his Bible-sworn oaths to them that he’ll break).

    I believe I’ve posted here before describing how I think democracy should be implemented, and I disagree with you both philosophically and practically. I think further alienating immigrants is not a recipe for civil cohesion, and restricting the franchise is exactly the opposite of what we should be doing. I wish we had a universal franchise, deliberative democracy and I love the Hare-Clarke system.

  37. Smith
    February 9th, 2018 at 10:32 | #37

    @Moz of Yarramulla

    Not so much insecurities as a special kind of nativism to say that only the Australian-born should be eligible to be elected to parliament because only they can be trusted to be loyal Australians.

    Not even Pauline Hanson, the nativist’s nativist, says that.

  38. Ikonoclast
    February 9th, 2018 at 11:31 | #38

    @Moz of Yarramulla

    I have not advocated restricting franchise if by that we mean the vote. I have advocated restricting qualification for Federal Parliament based on nationality by birth.

  39. Ikonoclast
    February 9th, 2018 at 11:48 | #39

    @Smith

    Even having an immigration policy, of any kind, is a level of nativism. Thus I hope, to be consistent, you are an advocate of completely open borders. Otherwise, you are simply being hypocritical. If you are an advocate of completely open borders I would refer to you the likely realpolitik and real geopolitical effects. These effects will not be beneficial or sustainable for any state of the population size of Australia.

    In the ideal socialist world, nation states would wither away. The global nation state system (and international system) shows no serious signs of doing that yet. Unilateral non-nationalism under current conditions would be economic, strategic and ecological suicide, at least for small to medium states. Large states might be special cases. This is the Realpolitik of it.

    Under conditions of capitalism nation states cannot wither away. All we can do, as a small-medium nation, is attempt to become more socialist at a national level and as accommodating to immigrants and refugees as we can be given our adjustment and ecological limits BUT no more accommodating than that. I advocate a dose of realism in these matters.

  40. may
    February 9th, 2018 at 13:31 | #40

    Smith :
    @may
    “having the top judges off the bench at seventy has my thumbs up.”
    Compulsory retirement at 70 was reasonable when it was put in the Constitution in 1977. But 70 then is like 80 now. Many judges who leave at 70 go on to have another 10 years of distinguished legal career, including as judges in other countries.

    that’s OK.

    the longer they live the deeper the pool of ex high court judge experience available to the current holders.

  41. Charlene MacDonald
    February 9th, 2018 at 15:01 | #41

    This is the same High Court that passed the Wik Decision, throwing most of Australia open to Native Title claim, but carved out a special exemption.

    A special exemption just happened to encompass the homes of High Court Judges and meant those homes could not be subject to Native Title Claim.

    ‘Twould be that High Court of which ye speak?

  42. Svante
    February 9th, 2018 at 19:40 | #42

    @Ikonoclast
    From the penultimate para of your BBC Magazine link: “The claim that most of us suffer from various forms of implicit bias is all of a piece with the explosion of research into the irrationality of our reasoning, decisions and beliefs. We are not the cogent, systematic and logical creatures we might like to assume.”

    True that, eg:

    rt.com/uk/418148-cheddar-man-twitter-reaction/
    abc.net.au/news/2018-02-08/cheddar-man-first-britons-had-dark-to-black-skin-dna-research/9406636
    wikipedia.org/wiki/Homo_economicus#Perspectives
    sciencemag.org/news/2017/01/your-choice-life-partner-no-accident

  43. may
    February 10th, 2018 at 11:47 | #43

    deary me.

    case by case.

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