The series of absurd rulings from our High Court has now reached the point where the majority of Australians are debarred from standing for election to Parliament, unless some foreign government chooses to help them. The latest ruling means that even renouncing a citizenship you never sought and have never exercised is not enough. Unless you start the process well before an election is even called, possibly years before, you are ineligible if you were born overseas, have an overseas-born parent and (probably) if you belong to an ethnic group which has a “right of return” to a national homeland. We have yet to explore the possible limits of other exclusion clauses.
There is some poetic justice in the embarrassment now being faced by Labor and Bill Shorten, who wrongly assumed they had prepared for the worst possible cases of High Court idiocy, and gloated over the misfortune of others. But that’s small comfort for anyone who would wish the outcome of democratic elections to be respected.
Until now, the line taken by the supporters of the High Court has been “it’s just a matter of following the rules”. It’s now been made clear that following the rules is impossible. An Australian citizen, even one who has never left Australia, can be ineligible simply because of the dilatoriness, incompetence, or even malice, of a foreign government. And, according to the High Court, there’s nothing they can do about it except wait.
The stupidity and bloody-mindedness of the High Court in this matter is matched by most of the political commentariat, and a large proportion of the Australian public, who will no doubt be represented in comments here.
From experience, I know that lots of readers will not be convinced. So, I will offer a question and answer another.
First a question, for those who still want to defend the High Court. Suppose that, after nominations have closed for the next election, a mischief-making foreign government (say, Russia, which has form for this kind of thing) confers citizenship on all the candidates for one or both of the major parties. What should the High Court do?
(a) Disqualify them, and say “Say, sorry, that’s the rules”
(b) Discover that the words of the Constitution actually allow for a reading exactly opposite to the one that they have just announced, and that a simple renunciation is all that is needed to free oneself of an unwanted citizenship.
(c) Something else (if so, what)
Second, an answer to those who seem to think that the Court had no alternative but to rule as it has done. The Constitution guarantees (or at least has been taken by the Court in the past to guarantee) a democratic government, and the Court’s rulings are clearly at odds with that, having effectively cancelled many of the outcomes of the last election and violating the general presumption that Australian citizens should be free to stand for Parliament.
The Court could and should have said that, given the overriding importance of democratic government, they would interpret the citizenship clause as narrowly as possible,An obvious route would be to say that the term “entitled” should be read to require some actual attempt to acquire or exercise the rights of citizenship of a foreign country, and that a declaration of renunciation voids that entitlement. That might not be the most literal reading. It would, however, maintain the intention of the founders to ensure that no-one with a real conflict of national loyalties could serve in Parliament, while avoiding the absurd and unforeseen implication that they themselves (and in many cases their children also) would be ineligible as soon as Australia became fully independent of Britain.
The predilection of the High Court for textual literalism has produced plenty of trouble before. With Garfield Barwick as Chief Justice, the Court effectively rendered tax payment optional in the 1970s. (As an aside, the view of the current Court is that Barwick was a foreigner who served illegally as Attorney-General). Fortunately, Barwick’s self-serving literalism was fixed by Parliament with changes to the Acts Interpretation Act that made the Court follow Parliament’s intention rather than its own tortured readings.
But that was a matter of statutory interpretation. To fix the current mess, a referendum to change the constitution would be needed, and that’s highly unlikely given the display of schadenfreude now on display. Against stupidity, even the gods contend in vain.