Against stupidity, the gods themselves contend in vain

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.

52 thoughts on “Against stupidity, the gods themselves contend in vain

  1. I have wondered about a “Section 44 Interpretation Act” which might say simply that from the perspective of the Parliament and the Australian Electoral Commission a formal written renunciation of one’s foreign citizenship sent by secure mail to the relevant foreign government and the speakers of the House of Representatives and the Senate would constitute an acceptable effort to renounce one’s foreign citizenship.

    I’ve been told that’s not on. I suppose the reason is that such an act could be seen as amending the Constitution by stealth. But could it be as simple as that? After all the Parliament makes laws that tell the courts what to do and we also have acts interpretation acts,

  2. Thanks for this informed common sense. I agree. “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.”
    I would add that to give weight to this mechanism, the CofA should then use ‘diplomatic’ means to give effect to that ‘declaration of renunciation’ throughout the life of the person’s elected office. There must be some scope for Parliament to act to restore ‘wisdom’ to the High Court, as HH suggests. The present mess is cruel to affected people and embarrassing to us all.

  3. After all the Parliament makes laws that tell the courts what to do and we also have acts interpretation acts,

    The parliament can alter that which it has created.

    Acts passed by parliament can have their imports altered by parliament whether by changing the text or changing the meaning directly; subordinate federal courts were created by statute and can have their juristictions altered.

    But the original juristiction of the high court was created by the people directly through the constitution, and so to change it you need to get the people to do it through the constitutional revision process. Same as one ministerial order can override another, but can’t alter statute.

    So, no, there’s no scope whatsoever. Constititonal amendment is the only option. Fortunately, my fear that Dutton would bundle up an omnibus wishlist has been diminished.

    [I think the judgement makes errors-of-fact: there’s some evidence that hints that the british government might have been processing conservative-side renunciations somewhat more promptly than leftist ones, and even the shadow of that possibility would make having to wait for a possibly-capriciously-delayed response an unreasonable imposition. But…]

  4. To be clear: I thought all the previous HC decisions on the topic were not only within the bounds of reasonableness but in fact Actually The Only Plausible Outcome.

    This one, though, is stupid.

  5. In answer to your question about a Government mischievously conferring citizenship, I believe that was considered in a previous decision and was deemed to fall outside the bounds of S44, i.e. such an attempt would be recognised in the high court as invalid.

    That aside, a renunciation should be seen as a full and complete rejection of a second loyalty and be sufficient.

  6. I said at my place it did not pass the pub test. What is worse they do not tell us where the Justices in Sykes V Cleary got it wrong.
    It is as bad as their reasoning on why Jim Molan had to replace Fiona Nash

  7. I’ll be honest. I had no idea I was such an oddity, being at least 5th generation Australian on both sides. It feels a trifle strange to contemplate. The ABS site seems to confirm J.Q.’s claim: “Half (51%) of the population were at least third generation Australians (born in Australia, as were both of their parents).” We can very possibly assume that children (plus those with right of return) will skew this sample to under 50% for voting age people.

    Taking a pragmatic view, a new law or referendum will be needed to fix this. Also taking a pragmatic view, Government of the country will not collapse. The outlandish scenarios put forward by J.Q. will not occur or will be summarily dealt with (legally or politically speaking) if they do (to about a 99.9% probability). The whole thing is a storm in a teacup.

    I feel zero sympathy for any politician caught by this. The professional political class in this country is corrupt through and through. They only get into political life to get snouts in the trough. Bourgeois representative democracy is nowhere near true democracy anyway. If both houses of pollies want to stop being unrepresentative swill let them legislate for proportional representation. No? Didn’t think so. They prefer the current corrupt “Game of Seats” plus their “Game of Mates”. The latter is a book worth reading. Bad writing style but enlightening contents.

  8. Section 44 should be reformed to allow dual citizen parliamentarians, however until it is it must be obeyed and enforced. The legislative components of our constitution are mostly democratic and enforcing some but not others is not a path we should go down.

    The ban on subjects and/or citizens of foreign powers was deliberately put in to keep dual citizens out by people wanting to keep influences from outside Britain and its colonies out of Australian politics and to contend that applying that ban (all be it with a major extensions to all non-Australian citizenships since the gradual break up of the British Empire) is somehow something the High Court could ignore or water down is ridiculous. The High Court`s reasonable tendency to ensure we are a legislative democracy by finding legislative attempts to reduce that unconstitutional cannot sensibly be extended to blatantly overruling the written constitution itself.

    Had the High Court ruled on this in its early years, the judicial dispensation for people unable to renounce their citizenship may not have been granted, as it was unlikely intended.

  9. It may be worth pointing out that someone born in Australian cannot renounce their right to Australian citizenship any more than someone born in New Zealand can renounce their equivalent right. For all the the kiwi parliamentarians have done the paperwork, to the best of my knowledge they can undo it simply by asking. The only path to losing that right is a conviction for treason, or in Australia ASIO can also remove it (arguably the Department of Homeland Security could also strip citizenship which may have the same effect but you would obviously need the high court of the posited “Australia Two” to decide that). Birthright citizenship is a problem in that regard.

    That said, I have to agree with the court on this one. The constitution is clear, loyalty to any foreign power is not permitted. If you don’t like that you should change the constitution.

    While we’re at it, I think it’d be worth confusing the situation further by piling on a whole bunch of electoral changes and getting them all into a series of referendums held at the same time. A bit of “who gets to vote”, a bit of “who gets to sit”, a bit of “who’s the boss” and a bit of “who’s the guv’nor” would be useful IMO.

    If we could entrench that every legal resident over, say, 15 years old is entitled to vote I’d feel more comfortable calling it “universal suffrage”.

    Likewise, a bit of “the highest polling candidates shall be declared elected in descending order of votes received until the available vacancies are filled” or something similar (allows for multimember electorates). Candidates should be limited to those eligible to vote, perhaps with a requirement that they be fluent and literate in at least one of Australia’s official languages*, and also that they be willing to serve (prevents empty seats caused by write-in votes).

    It would be useful to clarify the exact rights and duties of Australia’s Ruler, and perhaps also by what right that person rules.

    Likewise, the role of the Monarchs Australian delegate could use some clarification.

    * I am aware that Australia doesn’t have even one official language, and thus presumably someone could insist on speaking only Esperanto in parliament.

  10. Also, I think Waleed Aly’s “Why are all our dual citizens white?” article makes a very good point that the great majority of people caught by this are the ones whose Australian-ness is beyond question on account of their skin colour and accent. Especially in the context that when written the constitution arguably prevented *anyone* from being elected because by being Australian they automatically and unquestionably also became British…

  11. There was a time post decolonialisation when countries would insist that their citizens commit to only one nationality and renounce all others. I have since realised that attitude is misguided. E ought to celebrate our multiple identities, and if more people hold multiple citizenship’s and loyalties, the world is likely to be a more peaceful place.

    Also, it is self-defeating especially for developing countries, to force their citizens to renounce foreign citizenship’s. Citizens who are free to live overseas return with much more to contribute to their original societies. Not all return, but those who do bring with them know how, experience and relationships that will usually benefit the home country.

  12. I suggest that the only requirement for MPs is to declare all their citizenship’s and potential allegiances when they run for elections. It is up to the electorate to decide if they are happy to elect a representative with multiple citizenship’s and potential loyalties!

    I hope we have a referendum to change the constitution.

  13. Funny how things change. I stood for election in 2007. Everyone knew I was born in New Zealand. No one including myself thought that this would be a problem. No-one ever said “ought you not be renouncing your New Zealand citizenship?” The entire matter simply was not relevant as recently as that.

    Consider someone who was eligible to become an Israeli citizen? Are we really saying that such a person cannot be an MP in Australia? I will be happy with any interpretation they come up with, so long as they stick with it and apply it to all. But consider if they did apply the current interpretation to all? Would we get Netanyahu complaining? Or people trying to out Malcolm Turnbull as secretly eligible to become an Israeli citizen?

    I would suggest the High Court doesn’t have the mettle to apply their own interpretation without fear or favour. Either they will change their requirements or they will be hypocritical. I will be happy if they keep their requirements, or change them. But I don’t think we should tolerate a hypocritical situation.

  14. Had the High Court ruled on this in its early years, the judicial dispensation for people unable to renounce their citizenship may not have been granted, as it was unlikely intended.

    Back in those days dual citizenship wasn’t a thing; by becoming a british subject you [under british and most foreign law] resigned any previous citizenships.

  15. This is worth reading if you want to understand the High Court’s reasoning on the case.

    A key paragraph:

    “The joint judges accepted the Commonwealth’s argument as clearly reflecting the law stated in Sykes v Cleary and Re Canavan (at [22]). The constitutional imperative is narrowly focused on foreign laws that prevent a person from ever ‘freeing’ himself or herself of the citizenship of that foreign country, thus preventing them from lifting the disqualification in s 44(i) (at [23]ff). Foreign laws that require particular steps be taken will not ‘irremediably prevent’ renunciation: it must rather be an insurmountable obstacle, or a process that was unreasonable for, for example, putting the renouncer at personal risk (at [27]ff). The joint judges also explicitly rejected Gallagher’s submission that it is not sufficient that a person only take all steps reasonably required for the exception to s 44(i) to apply: the foreign law must also itself ‘irremediably prevent’ renunciation (at [30]ff). The joint judges added that the requirement of taking all those steps, even where the law prevents renunciation, is required by s 44(i)’s concerns about the duty or allegiance to a foreign power: taking those steps is a manifestation that the person has done all they can (at [32]). Gallagher could not identify any aspect of British law that would constitute an irremediable impediment, and that a decision might not be made in time for a particular person’s nomination for an election does not constitute an irremediable impediment (see [37]ff).”

    That does not put it in a foreign government’s power to block eligibility to the Australian Parliament by blocking a renunciation of citizenship. It may put it in a foreign government’s power to indefinitely delay such renunciation with mischievous intent. That might be where the problem lies in this judgement.

    Section 44 is proving awkward and archaic. The High Court is upholding black letter law rather than making law. The HC can make law. Just look at the Mabo case. The most likely justification for making law is that a manifest and serious injustice would occur otherwise. Perhaps, this doesn’t hold in this case. Can the court consider issues other than a manifest and serious injustice in order to make law? It is a constitutional issue not a justice issue. It goes to the operability of parliamentary representation.

    Perhaps the High Court is signalling it will not make law in this arena. Perhaps it is wise to do so. It appears to be putting the onus back on the Parliament and the People to go down the more difficult but ultimately better road of constitutional amendment. Maybe the HC is resisting the pressure for a quick fix which would set the precedent of making it more feasible for any HC to make law with respect to the constitution. Of course, my argument rests on making a distinction between “underlining black letter law” and “making law” and presumes that doing the former is qualitatively different in legal terms, and has different precedence effects, from doing the latter.

  16. John you say there is poetic justice in Labor’s embarrassment? Really? Why? Labor made an assessment of the law and put pre-selection processes in place that reflected that assessment. The clowns in this government didn’t even bother trying to do that. They just stumbled forward, as usual. Now we find out that Labor’s assessment is wrong because of what you say is a stupid decision. So what did the Labor party do wrong?

  17. One of the great idiocies of the HC’s judgment is that it will put the government of the day in the box seat. They will have no problem ringing up foreign embassies to get expedited renunciations for their candidates. Look what happened with Barnyard and Nash. The Opposition of the day will find it a lot tougher.

  18. Freddo, its much worse than that. You only get disqualified by the High Court if your case is referred to it by parliament. Government members are not referred to it, opposition members are. There are more coalition members who could be referred to it than than Labor ones (as you’d expect given that the Libs and Nats did not even try to vet their candidates after Sykes vs Cleary, where Labor did) but there is no way Turnbull is going to jeopardise his narrow majority.

    So in practice far from being an impartial rule it is already being used for partisan purposes. The High Court can in no way claim fiat justitia ruat coelum.

  19. I confess to being one of those who believed that due diligence and the timely initiation of reasonable, good faith efforts to renounce would be enough to satisfy the sec. 44(i) requirements.

    Clearly, I underestimated the High Court’s proclivity toward arbitrary, capricious and quite frankly farcical behaviour.

    This in the face of the political and ideological games -unfounded delays, and that the current Australian government and its agencies are engaged in with their own immigration and citizenship processes.

  20. @derrida derider

    Then, under the current system, the remedy must be for the people to change the government and the new government to sponsor a referendum with a suitable amendment. We cannot expect that the current HC judges will change their minds now. They have made that abundantly clear.

    Political parties and all candidates must do their due diligence and make sure their eligibility is water tight. The longer term remedy is as above.

    The issue highlights Australia’s very high immigration rate. Should it really be this high when we consider limits to growth, ecological damage and ecological footprint analysis? The precautionary principle would state “no”. We need to reduce immigration intake and take stock of our sustainability position. It appears the opposite will occur in practice. Once 51% of the voting population are immigrants or the children of immigrants, one can only imagine that political pressure to increase immigration will increase. That would spell disaster. This continent won’t carry a large population. To give one example, Western Qld. is ecologically wrecked already. Climate change is coming to make things even worse for Australia.

  21. The only way out of it is for an attachment to the next election and this attachment to be a referendum on deleting or ameliorating S44 and it should be able to show bipartisan support. The matter has been investigated in the past, senate committees and the like so there would be no need to instigate more expensive deliberation.

    S44 is a good example of why don’t need a bill of rights in this country. Look at the mess the gun lobby has made in the US where an interpretation of a loosely defined abstraction can be worked over to support the reverse.

  22. Don’t agree.

    The proposed definition of entitled is not just not the most literal reading. It is absurd. Every dictionary defines entitled to mean you have something by right. Entitled does not mean that that something kicks in only when the right is exercised.

    The High Court has laid down the challenge to the political class. If you want to fix this, convince tbe Australian people in sufficient numbers in sufficient states to vote to change section 44 by referendum. If the Australian political class can’t do this because it has lost the trust of the people, then it is the fault of tbe political class.

    If the hypothetical Russian scenario were to happen, then a referendum would pass. But in the meantime, aspiring federal politicians can do what Sam Dastyari did. Plan ahead, put in the paper work, and if it becomes clear that the foreign government actually or in effect won’t let them renounce their citizenship, they are in the clear.

    In practice that means that political parties will have to hold their pre-selections well ahead of the next election and candidates will have to pull their fingers out and get their paperwork done quickly.

  23. @rog

    Citing sec 44 and the US 2nd Amendment as the basis for the assertion that ‘Australia doesn’t need a Bill of Rights’ -or a Charter of Rights and Freedoms is disingenuous at best.

  24. @Jexpat How so? We elect parliaments to discuss issues of the time and pass legislation that is (hopefully) appropriate. We don’t need one body of people dictating how people live for generations to come.

    I would argue that the need to bear arms has passed yet present and future generations are under greater threat of harm than of the time the constitution was formulated.

  25. Following the next general election may we expect numerous citizenship based by-elections in LNP held seats following referrals to the HC by an ALP government? Maybe, unless Shorten does a farcical Rudd and has the ALP let bygones be bygones preferring to focus on the future than past Howard government crimes. Look how that tragicomedy turned out so well for the numerous guilty LNP crims and so poorly for those who held the power to inquire, refer, publish, prosecute, and have at least some justice done.

  26. The Dastyari case is striking. He apparently freed himself of his entirely notional loyalty to Iran only to be forced out (by shaming, not expulsion) because he was taking money from China. But the major parties are still taking foreign money.

    More generally, the Parliament is full of people with dual loyalties of various kinds but as long as their parents were born here, that’s not a problem, it seems.

  27. Particularly irritating no doubt because the candidate handbook said quite the opposite. I also wonder when Frydenburg and in particular Danby will eventually face the music. Danby is apparently an actual dual citizen of Germany, as well as holding religious rights to become a citizen of Israel.
    As a Green, it’s interesting to see the lack of contempt the press holds for the majors for their incompetent failure to do their paperwork, etc. Stark contrast with the attitude to Waters and Ludlam.

  28. @John Quiggin

    It is possible to be born in Australia of Australian-born parents and still be a dual citizen. Depends on tbe country. With some countries, citizenship continues ad infinitum through the generations.

  29. Too add more salt to the wound, the constitutional authors did not require that the Queens’ representative be subject to S44 of the constitution.

    “All the Governors-General until 1965 were British born, except for Australian-born Sir Isaac Isaacs (1931–36) and Sir William McKell (1947–53).”

  30. And, of course, the constitution doesn’t require that the Queen herself be subject to the clause; so a rep has been bounced for being under the direction of the same government that directs the head of state who directs our GG. Or for owing allegiance to the queen under the wrong parliament.

  31. I think this is an unforeseen outcome of selecting black-ink literalist judges, usually a convenience to conservative governments. I do not think that the High Court is behaving politically, but I do think they have positioned themselves in such a way that their course of action has become pre-determined, like a Shakespearean tragedy unfolding. The bone headed stupidity part is in the past, and without constitutional change we will inevitably and tragically reach the reductio ad absurdum of JQ’s Russian scenario.

    @Smith above is correct. There is a challenge to the political class to convince the population that the constitution must be changed. This is a challenge the vermin that infest our second rate parliament are clearly unable to meet. One has only to read the comments in The Age/SMH or The Guardian to see that the popular opinion is that political allegiance should be to Australia and Australia only, and that the population (at least those who comment in centrist media) are unwilling to offer the political caste a free kick.

    I have empathy with this position, especially as the outcome of remaining with the status quo is not necessarily worse than having a government.

    Personally I would vote against a referendum, largely out of spite. I would, however, support an omnibus referendum that reformed the political system.

    – Outlaw all political donations and fundraising
    – Independent scrutiny of politicians’ expenses
    – Travel expenses to be exclusively used for political duty; not party activities
    – Ban politicians renting accommodation from family or peers
    – Exclude politicians from being paid by the private sector both during office (!) and for ten years thereafter.

  32. Loco Jack :
    … @Smith above is correct. There is a challenge to the political class to convince the population that the constitution must be changed. This is a challenge the vermin that infest our second rate parliament are clearly unable to meet. …

    Historically, the majority of proposals to change the Constitution have been brought forward by the Labor Party and opposed by the Coalition parties. Proposals with the support of both sides have usually succeeded (there just haven’t been many of them). Part of the problem, I suspect, is that some conservative politicians fear that giving the general public opportunities to change the rules of the political system may give them ideas above their station. (I shouldn’t wonder if the same idea is found on the Labor side as well; but it doesn’t seem to be equally powerful on both sides.)

    … Personally I would vote against a referendum, largely out of spite. …

    Acknowledging that you have a problem is the first step to overcoming it.

  33. JQ your question test demonstrates the vulnerability of the citizenship test very well. There is in fact a current example being acted out in London right now.

    The renunciation to become a Member of parliament should be a declaration that all prospective MP’s should make regardless of their citizenship status and should have severe penalties in the case of a default, penalties such as the confiscation of all property of a defaulter.

    The special case is that of Julian Assange for whom the Ecuadorian government has conferred special protections (amounting to citizenship) so that he can avoid arrest in London. The fact is that Citizenship does not ensure loyalty, honesty, sincerity, or any other individual form of conduct. There are any number of exiled Kleptocrats around the world, and then there is the Donald Trump anomaly.

  34. @J-D
    Acknowledging that you have a problem is the first step to overcoming it.


    Though I have no reason not to believe your comment upon the origin of referenda, I am not sure that one can rely upon the traditional Labor = Left; Liberal = Right dichotomy any longer, so past behaviour is not necessarily indicative of future performance. I am only speaking personally of course, but as a train driver and unionist Labor should be my “brand” of politics, yet they are far too right wing for either myself or the Union and I have not voted for either party for thirty years.

    As an aside the Union no longer advise us who to vote for; the last time they issued a circular to that end they refused to endorse either party. The primary vote of both parties is diminishing, their membership is pathetic, and it really is up to the parties to reform and position themselves. But I do not think that they will do so unless they are mortally threatened.

    The apparent takeover of the Victorian LNP by the Mormons shows how weak the parties are, and how vulnerable to a hostile takeover. To me, that’s actually more concerning than the foolish outcomes of the High Court’s decision. If you can mobilise a few thousand people to join a political party and vote within it for your organisation’s interests, you can do a lot of damage. Even in these atheistic times the only groups that can muster those numbers tend to be faith groups, which could explain the predominance of Christian lunatics in the LNP at federal level.

    As for pub test (well, in-cab and meal room conversation) among my peers the major parties are utterly despised. But the thinking tends to be depressingly shallow, and parrot the louder noises made by the Murdoch media.

    Could a referendum pass on this issue? As Mark Blyth would say: “Mebbe”

  35. Could a referendum pass on this issue? As Mark Blyth would say: “Mebbe”

    Except in extreme circumstances (such as the Russian interference speculated about in the OP), a referendum would have very little chance of passing in the current environment, even if both parties supported it. Opponents would have a simple campaign slogan: “Keep the foreigners out of the parliament”.

    The secondary opposing argument (not that it would be needed) would be: “Centrelink and the ATO expect ordinary people to have their paperwork in order. If that is good enough for them, it’s good enough for politicians”.

  36. @Loco Jack
    I think what you have written is partly true and partly false, but I don’t think there’s any point in picking it to pieces because even if all of it were true I can’t figure how any of it is supposed to be relevant to the comment of mine that you were responding to. It wasn’t any part of my comment to advocate for or against any party.

    When I have voted in referenda in the past, I have voted on the basis of my evaluation of the proposal, not my evaluation of any of its supporters or opponents, and that’s what I would do in the future as well, and recommend anybody else to do the same.

  37. The minimum change with maximum effect, and I think the amendment most likely to prevail, is to delete the words “of being chosen or” from §44 so it reads “…shall be incapable of sitting as a senator or a member of the House of Representatives.” This addresses the ‘keep the foreigners out of parliament’ argument, but doesn’t invalidate anyone’s election, it removes the problem with people having to resign from various positions before contesting an election, and once someone’s won, the Parliament can assists its members and senators with expediting their applications for renunciation. Something like 90% of the current problems evaporate if the ‘date of nomination’ guillotine were removed.

  38. @J-D
    Sorry, I have obviously not expressed my opinion clearly. The point I was trying to make is threefold:

    In the current environment a referendum is unlikely to get up because the population hate politicians.

    It is hard to predict outcomes on traditional lines because the number of disaffected voters has vastly increased.

    Given the disaffection of voters and the lack of thought they put to this matter there is scope for the population to be influenced as Smith has mentioned above. But it is much easier, as he has observed, to shoot something down than to support it.

    That’s enough

  39. Loco Jack :
    Personally I would vote against a referendum, largely out of spite.

    You would vote that the status quo be maintained, to spite the status quo.

  40. The plebeshite was both stupid to many people, opposed by the wrong people, and optional. That’s very different from a compulsory referendum put by politicians asking voters to fix a political mistake that’s now costing politicians.

    If the question was “should anyone who makes a mistake with government paperwork be given a chance to fix it at no cost to themselves” that might get popular support, but it would utterly change the way Centrelink, the ATO and the Department of Homeland Security operate. And in a way that would really seriously screw up everything the Liberals and the bought media have worked for. So … no.

  41. @Loco Jack
    I am aware that there is much dislike, and some hate, for politicians; but I think you’ll find that’s always been true. When people focus on the unpopularity of politicians, it can give them a distorted sense of contrast with an imaginary golden age. The politicians of past times who are most admired now were, in their own time, criticised in pretty much the same way that contemporary politicians are. I am not old enough to have voted in the 1970s, but I am old enough to remember them, and as I remember them people hated politicians then about as much as they do now; and yet the voters did support referendums then. That is, in the 1970s voters did support referendums which had bipartisan support but not ones that didn’t. At the State level, there was a referendum in Queensland as recently as 2016, extending the parliamentary term, and people voted it up; I don’t think that was because Queenslanders hate politicians less than other Australians do.

    Of course past experience is not a certain guide to what might happen at a future referendum; and anyway, referendums with bipartisan support have been defeated more than once before now. Still, past experience is a better guide than anything else we have to go on, and a sufficient basis for concluding that referendums without bipartisan support have very little chance but referendums with bipartisan support have a significantly better chance.

  42. Let’s at least drop the “mistakes with the paperwork” stuff. What’s been made clear is that even if you do the paperwork perfectly, you aren’t eligible, unless and until some foreign government gets around to helping you.

    I suppose I should have added “spite” to “stupidity” as a reason why this will never be fixed. Thanks to Loco Jack for spelling this out.

    J-D @43 I wish I could share your optimism, but the Nexus referendum of 1967 goes against your story.

  43. The bloody-mindedness of the electorate is an impediment to changing section 44. Its the Australian way.
    Just like those who supported SSM, but called for a boycott of the plebiscite, they will create their own self-serving excuses as to why it shouldn’t be changed while never addressing directly the question – what real purpose does it serve?

    Just because someone “ticks the boxes” is not a guarantee that they don’t have a divided loyalty.
    Its the resentment that clouds peoples judgement.

  44. I suppose this should be obvious, but the HC decision actually creates a perfect opportunity to generate divided loyalties where none previously existed. Suppose you want to run for Parliament but your parent came here as a 3-year old from some other country. A government official explains that the process of losing citizenship normally takes years, but for special friends of the country, it can be rushed through in time to nominate. After you have been elected, an issue arises where friends of the country concerned have an opportunity to do a favour. The logic is pretty clear.

  45. @John Quiggin
    When I wrote in an earlier comment that proposals with bipartisan support usually succeed, I specifically had in mind the ‘nexus’ referendum. That proposals with bipartisan support have a significantly better chance than proposals without it is an empirical observation of past experience. If I had written that a proposal to fix section 44 will succeed if it has bipartisan support, it would have been unrealistically optimistic, but that’s exactly why I didn’t write that.

    But just for the hell of it, here’s a bit of real optimism for you. So far nobody in Parliament has proposed a change to the Constitution to fix this problem; but if a sensible proposal does ever get as far as an actual referendum, I look forward to joining you in the ‘Yes’ campaign.

  46. @John Quiggin

    That’s not totally clear. The facts of the recent HC case were that the Labor members got their renouncment applications in to the British with not much time left. The HC held that it was their fault that the British didn’t process the applications on time. If in the future some candidates get their applications in say 18 months before the next election, and the foreign governments don’t process them in time, I suspect the HC will find a way to say the candidates made sufficient effort.

    The Lesson: if you’ve got ambitions to go into federal politics, and you’ve got dual citizenship, plan ahead. Dastyari managed it. You can too.

  47. What are the practical options? It doesn’t seem that public opinion will change the High Court’s views and judgements. The HC is not responsive to opinion and lobbying in the manner that politicians are or are purported to be. It seems the only option is for the people and then parliament to formulate and then put to referendum a constitutional amendment.

    In the tradition of the jugged hare recipe, “first catch your hare”, I say here first formulate your proposed amendment. Then lobby for it. Then vote for a party that promises to put a reasonable likeness of this amendment to the people. That seems the only logical approach in the current system. Proposed amendments anyone?

  48. two simple amendments options:

    1. delete the words “of being chosen or” from §44 so it reads “…shall be incapable of sitting as a senator or a member of the House of Representatives.”

    2. Insert the words “Until Parliament provides otherwise “at the start of §44.

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s