How the High Court helped wreck Morrison’s visit to Fiji

As with just about everything Scott Morrison has done since becoming PM, his visit to Fiji was a trainwreck. Morrison must have hoped that his Trumpian willingness to endorse the dictatorial methods of Fijian PM Frank Bainimarama would ensure a warm welcome. It was not to be.

In part, this was due to the government’s embrace of climate denialism, which reflects hostility to the global environment in general, rather than Fiji in particular, and isn’t going to change any time soon. But there was also the avoidable own goal of stripping Australian citizenship from accused terrorist Neil Prakash, on the pretext that Prakash was also a Fijian citizen.

Peter Dutton isn’t the sharpest knife in the drawer, but under normal circumstances, he wouldn’t have reached the conclusion that Prakash, a Melbourne-born Australian was actually a citizen of another country he’d never visited or had any dealings with.

Dutton’s error is explained by the fact that the legal geniuses of our High Court have accustomed us to thinking in precisely this absurd way. Taking the silliest possible reading of the Constitution, they have led us to the position where people born in Australia to Australian citizen parents, and who may never have left the country, are routinely described as “foreigners“. Even Aborigines like Pat Dodson are open to this attack.

The mere possibility that one might apply for the citizenship of another country is sufficient. And even public renunciation of foreign allegiance is not enough, if the government in question is slow to accept it

It’s striking to observe that seven of the allegedly brightest legal minds in the country are effectively dumber than a bigoted ex-policeman, but that is the sad reality. We would be better off replacing the current High Court with seven randomly chosen citizens, or, for that matter, with the flip of a coin.

36 thoughts on “How the High Court helped wreck Morrison’s visit to Fiji

  1. Yes I agree this situation is a nonsense but if the courts ignore the law and just make stuff up based on what feels right and is convenient then I worry about where it might lead.

    Once again, the words in issue in s44 of the Consitution are:

    Any person who:

    (i) is under any acknowledgment of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power; or

    …..

    shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.

    The wording is self explanatory and should be given its “ordinary and natural meaning”, as the High Court found.

    It is the parliament and the public’s job to fix something dumb in the Constitution, not the High Court. In the meantime, an easy bureaucratic solution would be to establish a Government Office that anyone thinking of running for parliament could apply to- for a modest fee- to take, on their behalf, “all reasonable steps” (which is all the High Court demands) to renounce all foreign citizenships. This should be enough in all cases bar the case of someone who makes a last minute decision to run for parliament.

    The HC decision is here: ***www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/2017/45.html?context=1;query=xenophon%20canavan%20;mask_path=au/cases/cth/HCA

  2. A key problem here is that the HC really hasn’t engaged with how bad uk citizenship authorities are: they assumed that reasonable steps would get your citizenship revoked in good order, and that failure to get your uk citizenship revoked in good order would be evidence of failure to take reasonable steps… not properly understanding that anything dealing with uk authorities could be and has been subject to arbitrary and unreasonable delays, errors, lost paperwork &c.

  3. entitle

    VERB
    entitled (past tense) · entitled (past participle)

    (be entitled to)
    give (someone) a legal right or a just claim to receive or do something.

    the Court could easily have concluded that being “entitled” to foreign citizenship required some actual step to exercise that entitlement

    Given the dictionary definition of entitled, it would have been easier for the Court to conclude that 1+1=3. Some words have ambiguous meaning, it depends on the context, etc. Entitled is not one of them.

  4. The High Court wiggled and danced about as much as I am comfortable with when they let Devonport mayor Steven Martin replace Jacquie Lambie as a senator, even though on a plain and literal reading of s44, Steven Martin arguably held an office for profit that is in contravention of (iv) of s44 of the Consitution.

    No, because local government is not and has never been “crown”. There’s hundreds of years of unambiguous law on this point: people used to serve as mayors and in the house of commons even back when you had to resign and go through a by-election when you were appointed as a minister.
    + not a part of the state crown because they don’t pay into or draw from treasury accounts, need special instruments rather than ordinary executive actions for the minister to restructure or direct them, &c.
    + not crown in their own right because they don’t have crown immunities, sue and are sued in their own name [“City of brisbane v” rather than “queen in right of city of brisbane v”], can go insolvent, &c.

    [the local government framework in australia is descended from that of borough corporations in england, where they were discrete non-crown corporations established by private act of parliament. Which they still basically are, except for the way that like everything else the private act has been replaced by an order made under a framework established by a public act. To be sure, a “chartered corporation” is a pretty protean thing and kind of rare these days, so it’s not exactly surprising that people don’t know the above.]

  5. The wording is self explanatory

    The High Court made a choice when they interpreted the wording. I’m not saying they chose wrongly and I’m also not saying they chose rightly, but I am saying that they chose. If the wording explained itself, nobody would be asking the High Court to explain it.

    In the meantime, an easy bureaucratic solution would be to establish a Government Office that anyone thinking of running for parliament could apply to- for a modest fee- to take, on their behalf, “all reasonable steps” (which is all the High Court demands) to renounce all foreign citizenships.

    Those words ‘all reasonable steps’ aren’t in the text of the Constitution, are they? The High Court chose to use them.

  6. Those words ‘all reasonable steps’ aren’t in the text of the Constitution, are they? The High Court chose to use them.

    Captain Obvious? Is that you?

  7. As I said upthread, long before this was revealed, if Home Affairs senior officials just made stuff up, then the department needs a thorough clean out.

  8. Thanks for stupidity aphorism JQ,
    I feel a weight has been lifted from my shoulders. I forgot it couldn’t be ALL me as to stupidity.

  9. JQ:

    Yes, Dutton is a fool and the decision to strip Neil Prakash of citizenship was foolish for the reason you state.

    In fact, in my probably naive view, it is a case of enlightened self interest for the West to paint a bright line between us and the Islamists (and all other cruel totalitarian ideologies). If we strip folk of their citizenship, engage in extraordinary rendition, dabble in torture and indefinite detention then we are handing the bad guys a propaganda victory that can, and I believe already has, had material consequences.

    As I understand it, for instance, we have inadvertently lent legitimacy to the vile and draconian Chinese crackdown on the Muslim Uighur minority and other such actions by oppressive state actors.

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