The High Court: an agent of foreign influence

In a comment posted yesterday, I said

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.

Just a day later, we have the Oz reporting almost exactly this allegation against Labor MP Anne Aly. I have no idea of the validity or otherwise of the claim, but obviously it’s one that can now be made against anyone who has fallen afoul of the Court’s absurd rulings by having an overseas born parent, but who has been lucky enough to get expeditious treatment from the foreign government concerned.

But, just as Trump’s supporters have swallowed worse and worse things from him, I’m sure the fans of the High Court’s black letter approach to the Constitution will convince themselves that it’s all to the good that foreign governments are now in a position to interfere in our elections. That’s one of the notable things about adopting a really bad idea: the rationalizations needed to defend it pave the way for worse ideas to come.

21 thoughts on “The High Court: an agent of foreign influence

  1. The ban of foreign citizens or subjects written into the constitution is the problem, not the High Court not pretending it is not there. The wording of the constitution is unambiguous.

    The High Court`s acceptance of those unable to renounce being eligible is not black letter.

    Xenophon`s non-disqualification and the shoulder shrugging do not indicate a hard line black letter court either.

    Play the ball, not the person. The best way to get this fixed is to apply pressure to the politicians to put up a referendum and them campaign for a yes vote, not carp on the internet about the High Court doing its job.

  2. Your first two paras contradict each other. The black-letter (textual literalist) view is precisely that you follow the literal words of the constitution even if the outcome is:

    (a) not the one intended by the founders
    (b) obviously absurd
    (c) inconsistent with basic precepts of democratic government.

    On either an original intent view, or any kind of living constitution view, this decision would not have been reached.

    But what’s worse is that defenders of the Court are still denying (a)-(c) and pretending that the outcome is protecting good honest third generation Australians (who aren’t Jewish or otherwise entitled to foreign citizenship) against evil foreigners. As long as that continues, there’s no chance of a referendum getting passed.

  3. @John Quiggin

    defenders of the Court are … pretending that the outcome is protecting good honest third generation Australians … against evil foreigners.

    This is nonsense. Defenders of the Court are saying that there are limits to the fictions that the HC could invent to conclude that Section 44 means the opposite of what it is says.

  4. As there was no Australian citizenship at the time the constitution was written, what were they hoping to achieve.

  5. who aren’t Jewish or otherwise entitled to foreign citizenship

    Or catholic clergy or members of lay orders.

  6. @Florence Howarth

    The black-letter reading requires them to renounce that possibility. As I keep pointing out, *Australians* can’t do that, and other Commonwealth countries have equivalent laws (birthright citizenship). It is monumentally stupid, but that is what they wrote.

    This is a classic case of a law that needs to be amended. Sadly it’s also a classic case of the Australian dislike for politicians causing a lot of people to see this as a chance to give the b’stds a well-deserved kicking. IMO they’ve earned it, especially with referenditos – Turnbull especially is in no position to beg the populace to help with this one after he … didn’t do very well… with his Republic referendum.

    What the founders intended is completely misleading, since they apparently never considered the possibility that Australia would become a nation, let alone an independent nation not entirely subservient to English royalty. Well, except insofar as they made treason a capital crime. I suspect quite a few of them also intended that only white men would ever be permitted to become MPs, and more than a few would restrict that to upper-class white men. So their intent is a really bad guide to current behaviour.

  7. @Moz of Yarramulla
    To be clear: I think the constitution creates a single colony out of several, not a nation. It wasn’t even passed by an Australian government FFS. There’s little pretense of independence and many protestations of loyalty to foreign powers.

    WHEREAS the people of New South Wales, Victoria, South Australia, Queensland, and Tasmania, humbly relying on the blessing of Almighty God, have agreed to unite in one indissoluble Federal Commonwealth under the Crown of the United Kingdom of Great Britain and Ireland, and under the Constitution hereby established

    Yep, sounds very independent Australia to me.

  8. @John Quiggin

    I am saying that the High Court has not taken the full black letter approach you claim, it is in fact watering down the original intent. A living-law approach cannot just throw out the entirety of a provision, that would be more of a law-killing approach.

    Preventing dual citizen holders of foreign citizenships from being MPs was clearly and unambiguously intended by the authors of the constitution. This can be seen in both what they wrote in the Constitution, the other options they rejected and the language they rejected it with (such as rejecting the idea that people subject to being called up to fight against us could sit in Parliament as someone suggested in the convention debates on the topic). They were not 21st century universal equality activists, they were mainly mainstream Empire loyalist British-Australian upper-class and upper-middle class politicians (a demographic that remained more British-Australian, even when multi-generation Australian-born, for longer than other classes (who, with the exceptions of pretty much only the of Irish-Catholic Australians and leftists, largely still held still held pro-Empire positions into the 1940s)) who were largely the people who went on to introduce the White Australia Policy and ban almost all non-White people in Australia from voting in Commonwealth elections. Menzies pro-British attitude was outdated and far less popular than previously, but not as outdated and unpopular as is assumed by most people today.

    The only things to have changed are the increase, from the post-WWII migrants onwards, in the proportion of Australians who are from backgrounds that both were foreign in the 1890s and the dissolution of the British Empire from the 1940s to the Australia Acts in 1986 completely separating the UK and Australia and thus rendering the rest of the Commonwealth`s citizens as citizens of a foreign power. Those changed the effects, not the law. This is the effect of nationalism and anti-imperialism (first of others, then our own).

    Often the best way to change a law with obviously ridiculous results is to enforce it.

    It is inconsistent with the principal that people should not be unreasonably restricted from running from Parliament but is ideologically (if not practically) consistent with the non-interference principal of the ideology of the nation-state system, which remains deeply ingrained in our legal and political system (if somewhat inconsistently).

    The defenders of the ban on dual citizens, the stronger supporters of the non-interference principal than the everyone can state principal, are using the protecting Australia from foreign influence argument. However, those of us who do not support the continuation of ban but do think that the constitution should be amended only by referendum, not by ridiculous reinterpretation contrary to the wording.

  9. @Florence Howarth

    Most countries, with the exception of the UK, make de-renouncing a citizenship quite hard (i.e. you have to go through normal immigration processes and achieve citizenship like other migrants).

  10. Moz, they would naturally assume that if their descendants did NOT have the same purpose as them (ie merely to join several colonies into one bigger colony, as you say) that they would then have the sense to make the necessary constitutional changes. But as we’ve seen even on JQ’s comment threads it is clear that a lot of their descendants don’t.

    And May, the answer to your question is “no, it was not”. Moz is right here. The 1931
    Westminster Convention – amazingly, done under very Tory Australian and UK governments – may be a better beginning point.

  11. @Florence Howarth

    They were trying to keep non-British influence (especially non-British-European influence out German, Autro-Hungarian, Russian, Italian, American (the USA was even more ethnic European-dominated then), etc.) out.

  12. The Statute of Westminster was negotiated by the Scullin Government in 1931 (before it fell) and then implemented (retrospectively to the outbreak of war 1939) in Australia in 1941 by the new Curtin Government.

  13. Speaking as someone with part Irish ancestry, Irish citizenship is granted to people with a grandparent born in Ireland, and then your children can be Irish citizens too, even if you continue living outside of Ireland, such as in Australia.

    There is a lot of prejudice against the Irish and Catholics historically in Australia, something novels like Ruth Park’s Poor Man’s Orange are about, or even the political biography of that bleeding heart Catholic Prime Minister, Paul Keating, by speechwriter Don Watson (Recollections Of A Bleeding Heart is Scottish for saying these are my recollections of working for a Catholic. You probably have to be Scottish to get the humour. My Scots side of the family came from the same area of Scottish settlement in Gippsland as Don Watson’s).

    So having Irish citizenship is a protection against prejudice and discrimination faced by the Irish in Australia, meaning you have the right to live in the Republic of Ireland, and also the UK and EU at the moment.

    So for an Australian entitled to Irish citizenship to enter politics in Australia, means no longer having the right to escape prejudice in Australia and live in Ireland, and this then is applicable to your children. The third generation has to be an Irish citizen before the 4th generation of immigrants are born in order for the 4th generation to be entitled to Irish citizenship themselves.

    I expect this is the case for other nationalities as well. Maybe not the exact procedures, but that the entitlement to dual citizenship affords some protection against ethnic and religious discrimination in Australia, meaning the right of return to the country of your ancestry.

    And giving up that right of citizenship, in order to enter politics in Australia, necessarily affects subsequent generations who might be discriminated against, even if the person entering Australian politics didn’t think they themselves were discriminated against and needed the protection afforded by dual citizenship.

  14. @derrida derider

    It’s hard to pick a precise date for the beginnings of Australian nationalistic sentiment, or feelings that Australia really was a nation but it was surely before 1931. Federation was a significant moment. It was less than July 4 1776, but it was more than six colonies merely coalescing into one federated colony.

    This is distinct from formally stopping the Poms from passing legislation that applied to Commonwealth laws (1931), no more appeals to the Privy Council (1975) and formally stopping the Poms from passing laws that applied to the states (1986).

    The job is not complete. You only have to look at whose visage appears on the back of all coins to see that.

  15. Perhaps the high court was mindful of maintaining the perception of separation of branches of government as well as fulfilling its brief to reflect the values of the community, the community placing a very low value on giving politicians the benefit of the doubt.

    A very loose interpretation of “citizen” might allow for one who had never claimed citizenship of a foreign power but it is the term “entitled’ in the next phrase that is the killer. Does the high court have leeway to declare such a roadblock null and void in order to make the legal reality match the circumstances of the real world? Surely the fact that the British Empire or the British Dominion no longer exist represents enough of a change in reality to allow for a fair bit of licence when interpreting 44(i).

    I don’t think the framers intended such a strict interpretation. They would likely have had no problem, for example, with an interpretation which prevented the candidacy of British subjects of Indian, Pakistani or African ethnic origin, but allowed ethnic English and white New Zealand and Canadian subjects of the British Empire to stand for Parliament. Granted, Anyone of brown of black appearance would have found themselves excluded from the process due to good old fashioned racism.

  16. @may

    Australia didn’t become Independent of Britain until the 1986 Australian Act, passed by the Hawke-Keating government, and agreed to by the United Kingdom of Great Britain.

    Up until 1986 the English Courts and Parliament had oversight of Australian courts and parliament, although it wasn’t exercised much. If you had a High Court case decision you disagreed with you could appeal it to the Courts in England.

    There was limited Independence given before 1986 as England disestablished its Empire around the world following WW2, and also gave Australian States and the Federal government more powers even before WW2 compared to the establishment of the Colonies here.

    But if you look at the laws they are pretty messy.

    We still have English common law and unwritten law, which is basically impossible and undesirable to abolish. The legal precedents in all the Common Law countries affect each other, so to a degree a Canadian common law ruling can be used in Australian courts, despite the countries being independent of each other politically.

    The Australian State and Federal politicians really liked the idea of getting rid of British oversight of their decisions, and didn’t create any effective Australian institutions to have oversight of the State and Federal Parliaments, replacing the role of the UK. So basically this means the politicians have way too much power and way too little oversight.

    Australia also doesn’t have an effective modern Bill of Rights, although we have the UK Bill of Rights and inherit laws like the Magna Carta etc. So most of the rights we do have in Australia, come from the English laws.

    If you ever try to use the anti-corruption bodies and human rights bodies in Australia, you are likely to find them totally ineffective, and find yourself getting a letter back saying they use their discretion not to do anything, or that they don’t have the powers to do anything.

  17. As was discussed in comments a previous post, the HC has stated that it won’t follow the text if it produces sufficiently absurd results (for example, Putin granting citizenship to Turnbull the week before an election). So, the question is “how absurd is absurd enough for the Court to rule sensibly?”. I’d say a situation where the government, but not the opposition, can throw out elected members of parliament fits the description pretty clearly. YMMV

  18. @John Quiggin

    I fear that we already have that situation and the Court has just emphasised how important it is that a parliamentary majority be required for referrals. I can’t see how it would be otherwise, as the court can’t really say “we will accept similar cases brought by anyone”, even if they might be inclined to accept them (I have no idea whether that’s possible, but I would hope that being a voter makes you eligible to make such a complaint).

    I fear your example of “sufficiently absurd” would, even if it made the cut, not take effect with sufficient speed to prevent severe problems. Sure, the affected MPs have been declared able to act, even as ministers, without fear that their votes and decisions will be overturned (which is another shocking interpretation – you don’t have to be validly elected to make law).

    But I suspect that in that situation the affected politicians would be so caught up in the problem, and so hamstrung by chants in parliament of “Putin’s puppet” and other mature and adult behaviour that little could be achieved.

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