Section 44 Research Essay PDF

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Opinion research essay on the operation of s44 of the Constitution in the modern context. ...

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No need to Amend s 44

I INTRODUCTION A professor recently claimed the obligation on immigrants to take a loyalty oath to secure citizenship1 limits the ‘individual liberties of the oath-taker and discriminates against naturalized citizens concluding ‘[t]he more loyalty liberal democracies demand, the less liberal they become’.2 The opinion reflects the common aim of progressive democracies in a globalized world to become more open and is an example of how surrendering imperative national values3 is fashionable in the Western world.4 Such sentiments face a backlash with the rise of recent populist movements5 which is why a reserved approach should be the starting point when considering Constitutional reform.6 It is especially important for provisions which impact on matters of loyalty from citizens and those seeking to enter Parliament. This essay argues that s 44 of the Constitution should not be altered despite recent events,7 focusing on the foreign power provisions for disqualification of Parliamentarians.8 The other provisions9 are not discussed in depth as they are not as relevant to most people and are not linked to national identity or allegiance10 as a person may be loyal to Australia despite having been bankrupt for example.11 The paper looks first at the provision’s history and purpose then at arguments for amending it showing why they fail and the arguments against reform. Those arguments are presented in resistance to the attitude expressed in the quote above to show why the next referendum for Australia must be another attempt12 at establishing

1The Citizenship Act, RSC 1985, c 29, s 24; Australian Citizenship Act 2007 (Cth) ss 15, 27. 2 Orgad, Liav 'Liberalism, allegiance, and obedience: the inappropriateness of loyalty oaths in a liberal democracy' (2014) 27(1) Canadian Journal of Law and Jurisprudence 99, 100. 3 Such as those entrenched in a nation’s Constitution. 4 Hicks, Timothy, 'Inequality, marketisation and the left: Schools policy in England and Sweden' (2015) 54(2) European Journal of Political Research 326; Danny Osborne, Jennifer Lees-Marshment and Clifton van der Linden, 'National identity and the flag change referendum: Examining the latent profiles underlying New Zealanders' flag change support' (2016) 31(7) New Zealand Sociology 19; Misha Coleman, 'Change the date' (2018) 152 Arena Magazine 5. 5 Carl Dahlström and Peter Esaiasson, 'The immigration issue and anti-immigrant party success in Sweden 1970-2006: A deviant case analysis' (2013) 19(2) Party Politics 343; Roy Kemmers, 'Channelling discontent? Non-voters, populist party voters, and their meaningful political agency' (2017) 4(4) European Journal of Cultural and Political Sociology 381, 381-382. 6 Douglas Murray, The Strange Death of Europe (Bloomsbury publishing, 2017) 34. 7 The series of resignations and referrals to the High Court As the Court Disputed Returns of Parliamentarians on questions of eligibility under s 44 of the Constitution (“Crisis”); Re Culleton (No 2) (2017) 91 ALJR 311, 312; Re Day (No 2) (2017) 91 ALJR 518, 559; Re Nash [No. 2] [2017], HCA 52. 8 Constitution s 44(i). 9 Ibid s 44(ii)-(v). 10 Except the treason provision which is not explored as it is a rare offence and rarer still for an offender to latter nominate for election: EX Parte Cousens; Re Blackett (1946) 47 SR (NSW) 145. 11Constitution s 44(iii); Nile v Wood [1988] 167 CLR 133, 139. 12 The proposed bills that have gone to referendum have all failed if asked about freedom of speech only things may have been different: A. Mason, 'The Role of a Constitutional Court in a Federation: A Comparison of the Australian and the United States Experience', (1986) 16 Federal Law Review 1, 11; J. A. Toohey, 'A Government of Laws, and Not of Men?', (1993) 4 Public Law Review 163, 165; Constitutional Alteration (Post-War Reconstruction and Democratic Rights) Bill 1944 (Cth); Human Rights Bill 1973 (Cth); Constitution Alteration (Rights and Freedoms) Bill 1988 (Cth).

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freedom of speech as a Constitutional right.13 Until all expression is protected reasonable intellectual conversations on social matters will not occur and public opinion will be determined by a desire to conform14 and avoid isolation15 or more severe consequences.16 Those who inflict these punishments consider this to be a positive thing, for example it is happily claimed that the improved treatment of homosexuals only occurred because the elite class could make citizens ‘think and feel properly’.17 Foreign power debates would be influenced by establishing that those opposed to change were racist or xenophobic and forcing anyone with doubts to again ‘think and feel properly’. In such an environment the public cannot be expected to freely consider nuanced questions18 such as whether s 44 should be amended.

II CRISIS NOT CAUSE FOR REFERENDUM

A History and Purpose Section 44 establishes grounds of disqualification for parliamentarians19 before reviewing the first provision, the other subsections are (ii)-(iii) which contain criminal convictions20 to ensure high moral standing.21 Subsections (iv) and (v)22 limit the influence of the Executive over Parliament.23 Subsection (i) was included to prevent an actual or perceived split-allegiance within the members of parliament.24 It was framed in the context of the British Empire, originating in laws disqualifying 13 Not merely an implied right: Burns v Corbett (2018) 353 ALR 386; Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; Theophanous v Herald & Weekly Times (1994) 182 CLR 104; Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106; Nationwide News Pty Ltd v. wills (1992) 177 CLR 1; G. Williams, 'Lionel Murphy and Democracy and Rights' in M. Coper and G. Williams, eds, Justice Lionel Murphy - Influential or Merely Prescient? Federation Press, 1997, p. 50; 14 Gottfried, Paul, Multiculturalism and the politics of guilt: toward a secular theocracy (University of Missouri Press, 2002), 16. 15 Kalb, James, The tyranny of liberalism: understanding and overcoming administered freedom, inquisitorial tolerance, and equality by command (ISI Books, 2008), 52. 16 Such as loss of employment- Burns v Corbett (2018) 353 ALR 386, the most recent example involving Bernard Gaynor who was fired for expressing views on homosexuality though that case dealt with persistent harassment through litigation not his termination of employment; or being subject to discrimination or hate speech claims: Eatock v Bolt (2011) 197 FCR 261. 17 Richard Rorty, Achieving Our Country: Leftist Thought in Twentieth-Century America (Cambridge: Harvard University Press, 1998), 81. 18 Commonwealth, Parliamentary Debates, House of Representatives, 16 November 1933, 4643 (John Latham). 19 Minimum qualifications for members of the House of Representatives are in s 34 and identical for senators in s 16 of the Constitution. 20 Constitution s 44 (ii)- any person guilty of treason or offences punishable under the law by imprisonment for one year or longer; or s 44 (iii) bankruptcy provisions are disqualified. 21 Senate Standing Committee on Constitutional and Legal Affairs, Parliament of Australia, Report on the Constitutional Qualifications of Members of Parliament, (1981)19, 36 [2.14]. 22 Re Day (No 2) (2017) 91 ALJR 518, 23 Carney, Gerard, 'Foreign allegiance: a vexed ground of parliamentary disqualification' [245] (1999) 11(2) Bond Law Review 245, 246-247. 24 Official Record of the Debates of the Australasian Federal Convention, Sydney, 21 September 1897, 1012 (Edmund Barton); See also Senate Standing Committee on Constitutional and Legal Affairs, Parliament of Australia, Report on the 2

anyone born outside the empire25 from holding office.26 British subjects held the highest degree of membership to Australia27 there was no Australian citizenship and dual citizens were far less common.28

The first limb29 requires acknowledgement of foreign loyalty,30 which includes acceptance of a foreign passport, servicing in the military of31 or taking an oath to a foreign power. 32 The second limb prescribes two grounds of disqualification ‘subject or citizen’33 and ‘entitled to the rights’34 While drafting the Constitution35 at the convention debates36 (“Debates”) there was a vote37 to insert a provision empowering Parliament to determine grounds of disqualification.38 Most delegates believed a provision that provided parliamentary integrity and national sovereignty39 would not need to change40 so the vote did not pass.41 The provision was necessary as ‘[a] foreigner might get into our parliament and sell our defence secrets to a foreign power’.42 This was a common approach Constitutional Qualifications of Members of Parliament (1981) 131 [2.14]. 25 Act of Settlement 1701 (Imp) s III. 26 Prior to 1701 foreigners were disqualified at common law see: Limon, Donald & McKay, W R (eds), Erskine May’s Treatise on The Law, Privileges, Proceedings and Usage of Parliament (Butterworths, 22nd ed, 1997), 40. 27 Since 1986 people born in Australia automatically become citizens if at least one parent is an Australian citizen or a permanent resident: Nationality and Citizenship Act 1948 (Cth). 28 Joint Standing Committee on Electoral Matters, Parliament of Australia, Excluded: The Impact of Section 44 On Australian Democracy (2018) (“Report”) 43 [3.40]; Evidence to Joint Standing Committee on Electoral Matters, Parliament of Australia, Melbourne, 1 February 2018, 21 (Dr Sangeetha Pillai); See also Professor George Williams, Dr Sangeetha Pillai and Mr Harry Hobbs, Submission No 36, to Joint Standing Committee on Electoral Matters, Inquiry into matters relating to Section 44 of the Constitution, 8 February 2018, 3; Brendan Whyte, Submission No 41, to Joint Standing Committee on Electoral Matters, Inquiry into matters relating to Section 44 of the Constitution, February 2018, 5. 29 ‘under any acknowledgment of allegiance, obedience, or adherence to a foreign power’: Constitution s 44(i). 30 Nile v Wood (1986) 167 CLR 133, 140; Quick & Garran, The Annotated Constitution of the Australian Commonwealth, 1901, 490-1. 31 R D Lumb, The Constitution of the Commonwealth of Australia-Annotated, (Butterworths, 4th ed, 1986), 167. 32 Michael Pryles, ‘Nationality Qualifications for Members of Parliament’ (1982) 8 Monash University Law Review163, 177. 33‘of allegiance, obedience, or adherence to a foreign power’: Constitution s 44(i); no longer relevant today and reflected the distinction in 1900 the citizen in a republic or subject in a monarchy: Gerard Carney Foreign Allegiance 34 ‘or privileges of a subject or a citizen of a foreign power’: Constitution s 44(i). 35 The Draft Bill to Constitute the Commonwealth of Australia 1891 was voted for by delegates of each Australian colony at referendums in 1898, 1899 and 1900: John La Nauze, The Making of the Australian Constitution (Melbourne University Press, 1972) 287. 36 Official Record of the Proceedings and Debates of the Australasian Federation Conference, Melbourne 1890; Official Report of the National Australasian Convention Debates, Sydney, 9 April, 1891; Official Report of the National Australasian Convention Debates, Adelaide, 29 March 1897; Official Record of the Debates of the Australasian Federal Convention, Sydney, 2 September 1897; Official Record of the Debates of the Australasian Federal Convention, Melbourne, 20th January 1898. 37 Official Report of the National Australasian Convention Debates, Sydney, 2 September 1897, 1028. 38 Qualifications were deferred by the inclusion of the words ‘until Parliament otherwise provides’: s 34 of the Constitution. 39 John Quick and Robert Randolph Garran, The Annotated Constitution of the Australian Commonwealth Part 1 (1901) 491; See also Joint Standing Committee on Electoral Matters, Parliament of Australia, above n 28, 14. 40 Joint Standing Committee on Electoral Matters, Parliament of Australia, above n 28, 14 [2.6]. 41 26 opposed to 7 in favour: Official Record of the Debates of the Australasian Federal Convention, Sydney, 2 September 1897, 1028. 42 Official Record of the Debates of the Australasian Federal Convention, Sydney, 2 September 1897, 1015 (Edmund Barton).

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and reflective of British law at the time.43 Before s44(i) passed it was rewritten which resulted in the threshold changing to passive44 not active45 allegiance to a foreign power as being enough for disqualification under that limb, this wasn’t explained or debated before the delegates voted.46 It was not until 1999 that the High Court as the Court of Disputed Returns (“Court”) determined that the UK was a foreign power for the purposes of the second limb of s 44(i)47 having earlier decided a British subject was an alien48 within the Commonwealth naturalisation and aliens is power49 B Defeating Arguments for Reform In response to the 2017 crisis50 the Joint Standing Committee on Electoral Matters (“Committee”) produced a report recommending that the Federal Government prepare a referendum to repeal s4451 or insert wording to defer to Parliament matters of disqualification.52 The arguments in favour of amending s 44 presented in this essay are drawn from the report and fall into 2 categories:

1.

Social Norms

(a): The rational for s 44 remains relevant but the language used reflected 1890s Australia no longer conforming with societal norms.53 Apparently citizenship is no longer vital for allegiance,54 s 44(i) is xenophobic55 and migrants shouldn’t have to renounce prior citizenship as ‘the pledge required to

43 Sir Thomas Erskine May, A Treatise on the Law, Privileges, Proceedings and Usage of Parliament (Butterworths, 10th ed 1893) 27. 44 ‘is a subject or citizen … or is entitled to’ 45 ‘done any act whereby’ 46 Aroney, Nicholas, The constitution of a federal commonwealth: the making and meaning of the Australian constitution (Cambridge University Press, 2009), 165; Hal Colebatch, Submission No 24, to Joint Standing Committee on Electoral Matters, Inquiry into matters relating to Section 44 of the Constitution, 21 February 2018, 4; See Also Dr Hal Colebatch, ‘How the Australian Constitution, and its Custodians, Ended Up So Wrong on Dual Citizenship’, the Conversation, 6 February 2018, at . 47 Constitution. 48 Nolan v Minister for Immigration and Ethnic Affairs (1988) 165 CLR 178; P H Lane (ed), Lane's Commentary on The Australian Constitution (Law Book, 2nd ed, 1997) 9, 106. 49 Constitution s 51(xix). 50 17 Parliamentarians have now either resigned (9) or referred to the Court of returned disputes (8, 6 of which were eligible). 51 Constitution. 52 Joint Standing Committee on Electoral Matters, Parliament of Australia, above n 28, xix. 53 Ibid 43 [3.39]. 54 Ibid 43 [3.42]. 55 Joint Standing Committee on Electoral Matters, Parliament of Australia, above n 28, 38; Hamilton Stone, Submission No 6, to Joint Standing Committee on Electoral Matters, Inquiry into matters relating to Section 44 of the Constitution, 7 December 2017, 2.

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become a citizen is enough’.56 The Committee acknowledged that debate over drafting s 44(i) had a ‘very primitive anti-foreigner sentiment running through it’ not conducive with multiculturalism.57

(b) Negation: The tactic of framing the debate as against intolerance and xenophobic was already being relied on as a justification for recommending repeal.58 The Report referred to social norms as defined in submissions made by highly educated people, though trite to say- they are the elite class.59 Their qualifications and constitutional expertise does not add value to their opinion of what are social norms are today. The population is now ethnically diverse and multicultural, but these qualities do not change expectations on the legal system or representative governance. The reverse is true, the Constitution changes the multiracial population from a divided people with no common cultural heritage into a unified group protected by and loyal to Australia. The Country is diverse and concerned with equal representation but not at all costs, not at the expense of state security.60

2.

Unintended Hardships

(a): Section 44 was drafted without due consideration61 especially of the rewritten form of subsection (i) leading to unforeseen hardships. 62 These include: the weaponization of s 44,63 an inability to renounce previously held citizenship under foreign law64 and a non-representative Parliament as members are not dual citizens and arguably 40% of the population have dual status.65 The Committee decided ‘the link between citizenship and allegiance was stronger and… less complicated’ in 1901 and matters arising under s44 will ‘become more complex’.66

56 Joint Standing Committee on Electoral Matters, Parliament of Australia, above n 28, 44; Hamilton Stone, Submission No 6, to Joint Standing Committee on Electoral Matters, Inquiry into matters relating to Section 44 of the Constitution, 7 December 2017, 3. 57 Evidence to the joint standing committee on electoral matters, Parliament of Australia, Perth, 20 February 2018, 20 (Hal Colebatch). 58 Joint Standing Committee on Electoral Matters, Parliament of Australia, above n 28, xxiv, 2,3, 38. 59 John Higley and Ian McAllister, 'Elite division and voter confusion: Australia's republic referendum in 1999' (2002) 41(6) European Journal of Political Research 845, 845-847. 60 Official Record of the Debates of the Australasian Federal Convention, Sydney, 21 September 1897, 1012 (Sir Edmund Barton and Sir Isaac Alfred Isaacs) 61 Joint Standing Committee on Electoral Matters, Parliament of Australia, above n 28, 16-17: Evidence to the joint standing committee on electoral matters, Parliament of Australia, Perth, 20 February 2018, 20 (Hal Colebatch). 62 Joint Standing Committee on Electoral Matters, Parliament of Australia, above n 28, xxiv. 63 Hal Colebatch, ‘How the Australian Constitution, and its Custodians, Ended Up So Wrong on Dual Citizenship’, the Conversation, 6 February 2018, at . 64 Re Questions Referred To The Court of Disputed Returns Pursuant To Section 376 of The Commonwealth Electoral Act 1918 (Cth) Concerning Senator Gallagher (2018) 355 ALR 1, 16 (Edelman J) (“Re Gallagher”). 65 Migration of 4 million new citizens since 1949 subject to potential disqualification. 66 Joint Standing Committee on Electoral Matters, Parliament of Australia, above n 28, 44. 5

(b) Negation: Critics of rigid constitutions argue ancient67 authors could not have imagined improvements in technology68 or evolution in values and would have redrafted provisions if they could imagine the resulting severity of hardships caused today.69 Sir Edmund Barton discussing s44(iii)70 proves otherwise: We know that the safety of the state is the highest law… is it to the interest of the state to allow all these matters to be left open, in order that in occasional cases some hardship may not exist?

He held to that highest law stating: If we depart from that line... we allow interests of the state to suffer materially, simply because somebody may at some time or other, of which we know nothing, and under circumstances of which we know nothing, be subjected to a hardship.71

They were aware even in 1897 that the provisions of s 44 may lead to hardships in the future, regardless those provisions needed to be protected from amendment except by the use of s 128. All hardship would be avoided if they had taken the proper steps to ensure their eligibility. Many people have pointed out the difficulty involved, no doubt an arduous task ‘[h]owever, those individuals are seeking to be elected to Parliament… not, for example creating an iTunes account’.72 C Arguments Against Amendment

1. The Constitutional Imperative Exception Sufficient and fair the Court recently73 considered whether a person subject to foreign citizenship involuntarily by the operation of foreign law and despite taking reasonable steps to renounce are disqualified.74 If so a foreign law would determine matters of the Constitution, the Court held that 67 Not a term they use but it reflects a common attitude: Hammond, Philip ‘Constitutional Faith, Legitimating Myth’ (1989) 14(2) Civil Religion, Law and Social...