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. I naively assumed that it would take years for that particular stupidity to bite some hapless immigration minister, but sadly the Liberal-National-LiberalNational coalition has once again exceeded expectations. To use a sporting metaphor, when the opposition wrote them off as already so far in the hole that there was no hope for them, they have given 110% and reached entirely new depths.

    I’m certain this was devised purely to distract from the expected protests over the Captain Cook circumnavigation recreation.

  2. If I were Fijian I would be horrified that Australia wanted to dump a dangerous militant extremist on them. We have the resources to deal with dangerous criminals – more resources than Fiji has. And if he is what it is claimed he is having him in Australian custody would mean Australian authorities would have control of what happens to him, which seems something our authorities should want.

  3. The High Court was given the opportunity for bizarre interpretation because the clowns who wrote the Constitution made such a hash of it.

  4. Ken, the Fijians actually have excellent facilities and personnel for dealing with dangerous undesirables, look at the number of journalists and politicians who have decided that peaceful compliance with the government is in their best interests (sometimes, admittedly, that’s the silence of the grave but we are in no position to take the moral high ground on that, they can just point at our first nations people or our work on climate change).
    This is purely about us trying to send an Australian problem off to a small pacific island because we think it’s easier to bully them than deal with our own problems. We have form on that.

  5. This ongoing attack on the High Court judges is just bizarre. Their hands are tied by what the Constitution says in plain English. Not even the most tortuous interpretation of the actual words in s44 can turn white into black.

    Equally bizarre is the idea thatDutton said what he did about Prakash based on the Australian Constitution. The Deapartment of Home Affairs would have advised Dutton based on legal advice they received about Fijian citizenship law. It turns out that advice was wrong. Legal advice often is.

  6. This ongoing attack on the High Court judges is just bizarre. Their hands are tied by what the Constitution says in plain English.

    If what the Constitution said was in plain English, we (and the High Court judges) wouldn’t have the problems we do.

  7. The framers can’t be blamed for failing to foresee a totally different world. Under the current High Court interpretation, virtually all of them would have been rendered ineligible, and I’m sure they didn’t intend that. It’s the absurdity of textual literalism, as opposed to a living constitution, that gives us this kind of nonsense. In this context, the words “plain English” are the signpost on the way to perdition,

  8. Is there anything written by a constitutional scholar that argues the High Court could have gone the other way, based on legal reasoning?

  9. “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.”

    Let’s make it a game, and see what we decide. Maybe a rewrite of the Constitution. Yet the problem of old Constitution or black letter reading after societal changes needs ” “A proposed change must first be approved as a bill by the federal Parliament. It is then sent to the Governor-General in order for a writ to be issued so a referendum can occur.”” The method of changing the Constitution needs changing… via the Constitution which is, imho a large part of the problem.

    So lets play. “”Lessig is also interested in possibly implementing an in-game process in which democracy doesn’t depend on voting: “I’m eager to experiment or enable the experimentation of systems that don’t need to be tied so much to election.” He’s thinking of a system described in the book Against Elections: The Case for Democracy, which argues that government officials might be randomly chosen, similar to the jury selection process, through a mix of volunteering and lottery. “I would like to see in games, at least, a wider opportunity to experiment with that system of election. I’d love to see people playing with that.” . Me too.

  10. “Signpost on the way to perdition”.

    Perdition – a state of eternal punishment and damnation into which a sinful and unrepentant person passes after death.

    Being more rational than most, the High Court judges will likely accept Pascal’s wager and make death bed conversions to avoid this punishment.

  11. Smith9 It’s clear that everyone who advised the Labor Party on the rules before the last election thought that they were compliant. And, even until the High Court ruled on the latest cases, lots of experts thought they could go the other way. If you want to stick to a pretence of literalism, the Court could easily have concluded that being “entitled” to foreign citizenship required some actual step to exercise that entitlement, and that a simple renunciation was sufficient to wipe it out.

    The bigger point is that any philosophy of constitutional interpretation that takes the establishment of a democratic form of government as the primary goal would reach the opposite conclusion to that of the strict literalism you are so enamoured of. If a process of logical reasoning produces absurd conclusions, you need to conclude that you are arguing from faulty premises.

    Finally, on the experts on Fijian citizenship law, might I suggest that such experts are more likely to be found in Fiji than in Canberra? I think it’s fair to suggest that the High Court’s claim to determine foreign citizenship has contributed to the hubris that produced the latest fiasco.

  12. We still have quite a few people here with Australian citizenship who served in South African police or armed forces under apartheid. I expect they’ll be stripped of their citizenship any time now…

  13. Logical arguments are all very nice but what matters in legal cases is legal arguments. Again, I ask, has anyone produced a legal argument that the Barnaby etc cases were wrongly decided as a matter of law?

    As for Fiji, Dutton hasn’t released the advice that led him to conclude that Prakash is Fijian. I’d be astounded if it wasn’t properly formulated legal advice based on Fijian law but I suppose you never know.

    If it was some departmental officer extrapolating out of his arse from the HC cases then that is a sign the whole department needs a thorough clean out. Which it probably does anyway for other reasons.

  14. According to the High Court’s Smith9 endorsed literal interpretation, a nation state like the UK – to which many Australians and even more MPs can trace their heritage – could cause a large proportion of MPs to become ineligible by adopting a strong form of ius sanguinis (this isn’t unheard of – for political reasons any Soviet citizen who could produce evidence of German heritage no matter how far back could obtain German citizenship until the 90ies). As John has pointed out, for probably the first 50 years of the federation, all or almost all MPs were ineligible to sit, under the current interpretation. Maybe someone should challenge laws passed under those parliaments…

  15. Australian citizenship did not exist until 1948. Australians were British subjects, so there was no problem, even in retrospective theory, for the first 47 years of federation..

  16. ” wrongly decided as a matter of law?” They were probably rightly decided according to the ultra-Barwkickian legal philosophy that now appears to prevail (Barwick himself was led either by common sense or political allegiance, to adopt a more sensible view of s44). That just shows, as did Barwick’s attempt to destroy the tax system, that this is a really bad philosophical position.

  17. Sadly it could be a very simple situation, Dutton thinks he is the law and therefore beyond challenge.

  18. As always with the law we are back in the time of Charles Dickens. The law assumes we are all happy with the Australian Constitution. If we were not happy we would have a referendum to change it for all time. But the law can be “an ass” when it fails to see political motives behind legal precedents.

  19. Constitutions seem to be quintessentially arch-conservative in nature. The ideas of rich and privileged men (always men) from one hundred, two hundred or three hundred years ago are therein codified and congealed. The language is now archaic. A proportion of the document has been rendered anachronistic or obsolete by changes over time.The long dead, who could never envisage the set of transformations to the living present, continue to dictate to the living how they should order their governance. The constitution has, usually, stringent protections against modification. These, of course, equate to protections of even its most anachronistic and obsolete aspects; protections which render amendment difficult. Yet, without a constitution and statute law, the rule of law, upon which democracy must be based, cannot exist.

    IMHO, interpretation of a constitution should proceed in two parts. The first part is interpretation of principles. The second part is interpretation of mechanisms to put the principles into action. What principles does the Constitution seek to embody? The preamble or like part of the constitution will usually express the principles which the constitution seeks to embody. In modern constitutions this will include, usually, placing sovereignty with the people (all enfranchised persons) and upholding the general principles of democracy and rule of law. (Justifying these principles is outside the scope of this short post.)

    The High Court’s highest duty is to uphold the general and most fundamental principles of the constitution and of the constituted polity, the Commonwealth of Australia in this case. The principles should take precedence. Then, as with Section 44 of our Australian constitution, there will be sections which provide mechanisms for putting the principles into effect. Of their nature, legal mechanisms are more likely to suffer obsolescence than statements of higher principle. One could argue that essential justice and fairness and thus essential human rights do not and should change over time other than in undergoing evolving or emerging improvement and addition to them.

    As stated above, legal mechanisms are more likely to suffer obsolescence than statements of higher principle. Mechanisms can become obsolete relative to the intention of the higher principles embodied in the constitution. Judges should be aware of this fact and always ground their determinations in the principles of the constitution rather than in literal black letter interpretations of sections merely specifying “mechanism”.

    Thus far, what I have said above tends to support J.Q.’s position. The High Court judges are doing a poor job when black letter law interpretation of “mechanism” sections takes precedence over maintenance of the principles of the constitution. However, loyalty to the democratic polity, rather than to a foreign power, is also an unavoidable inherent principle of a democratic constitution. This principle also needs to be maintained but not in a paranoid or excessive way which in itself can become oppressive in nature. The presumption of innocence and good faith must take precedence. Treason or subservience to foreign power, however it is to be defined, must be proven in a court of law according to law.

    Finally, in making a severe black letter law interpretation of a “mechanism” section, the judges have not only forgotten that principle must take precedence over mechanism, they have also shown cavalier disregard for public (democratic polity) standards and for the practicalities of representative government practice.

    Final Note: After thinking this through, over time, I have moved closer to J.Q.’s position, though I think that position might still be actuated to some extent (in some cases, not necessarily in J.Q’s case) by naivety about the inimical intentions of some foreign powers. We have to remain alert to the anti-democratic tendencies of clearly hostile totalitarian powers. China in particular comes to mind. China would not ( in fact does not) hesitate to subvert democracy in Australia when it can. This is not to absolve the USA, for example, which has subverted many attempts at democracy or self-determination in smaller countries, around the world, since WW2.

  20. The framers can’t be blamed for failing to foresee a totally different world.

    As a general principle, that’s obviously fair, but I’m having a lot of trouble figuring out its specific applicability to this issue. If there were developments between the 1890s and now which the framers could not have foreseen, and if those developments were a key source of the present complications, that would provide an obvious justification for exculpating them; but I can’t put my finger on specific developments between the 1890s and now that contributed to the current complications. That the eligibility of Representatives and Senators might be challenged and the High Court might be called on to interpret section 44 to resolve those challenges is the kind of thing the framers could easily have foreseen. They did, after all, foresee in general terms that there would be changes they could not specifically predict and which would affect the operation of the Constitution. The Constitution give the Parliament power to make laws with respect to ‘postal, telegraphic, telephonic, and other like services’. The framers wrote in the words ‘and other like’ because they foresaw (accurately) that there would be technological developments in that domain whose specifics they could not predict. If they could foresee that, they could have foreseen that the meaning of section 44 might be questioned. What else has happened, affecting the operation of section 44, that they could not have foreseen?

    Is there anything written by a constitutional scholar that argues the High Court could have gone the other way, based on legal reasoning?

    In each of the cases decided by the High Court the Representatives and Senators whose eligibility was challenged would have been represented by barristers specalising in constitutional law. In each instance, the arguments put by those barristers on behalf of their clients would have constituted legal reasoning in support of the conclusion that the individual in each case was eligible. Legal arguments on both sides are the norm in constitutional cases.

  21. “I can’t put my finger on specific developments between the 1890s and now that contributed to the current complications”

    How about the fact that people who were born, or whose parents were born, in Britain, New Zealand etc (true of virtually all the framers) are now foreigners? The great majority of the ineligibility cases arise from this fact.

  22. Strictly in the context of the 1890s, the concept of a parliament in one of Her Majesty’s realms legislating to provide that natives of another one of her Majesty’s realms were to be treated as foreigners was not a wild specuative fancy but a possibility with exact historical precedent. That’s exactly what the Parliament of England did in 1705, legislating for natives of Her Majesty’s Kingdom of Scotland to be treated as foreigners in Her Majesty’s Kingdom of England. The framers of the Australian Constitution didn’t need precognition to conceive the possibility of the same thing happening again.

  23. Prof Q:

    If you want to stick to a pretence of literalism, the Court could easily have concluded that being “entitled” to foreign citizenship required some actual step to exercise that entitlement, and that a simple renunciation was sufficient to wipe it out.

    You are arguing that the High Court should have given the word “entitled” a meaning that it doesn’t have and that is completely at odds with precedent. There may be case where that it is warranted but this isn’t it.

    Such a case would arise if a foreign power tried to game the rules to interfere with Australian democracy. IIRC, the High Court made comments in obiter in relation to exceptional circumstances that indicate it would apply common sense if such a case were to arise.

    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.

    The major political parties now need to unite to get the Constitution changed. With cross party support, I don’t see why that should be too hard. But if it does prove too hard, then we get what we deserve.

  24. It’s no wonder Dutton made a mess of the Fiji thing. Before the HC started this nonsense, no one would have contemplated the absurdities expressed above. Every Parliament since 1948 was full of ineligible members, it seems, and no one noticed.

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