How the Australian Constitution, and its custodians, ended up so wrong on dual citizenship

Members of the Australasian Federation Conference, 1890.
Parliamentary Education Office

Hal Colebatch, UNSW

For those who take only an ordinary interest in politics, the drama over citizenship and eligibility to be a member of parliament has been puzzling. Surely these people looked at the rule book, the Australian Constitution, before deciding to stand for election? Why were their nominations accepted if they weren’t qualified?

Well, it’s not quite that simple. The constitution is not the rule book, but the record of a deal between the leaders of six self-governing colonies to form a federation; it covers what they wanted to cover, and it means what relevant people make it mean.

It doesn’t say that there has to be a prime minister, but it does say that “there shall be an Inter-State Commission”. That we do have a prime minister and don’t have an inter-state commission reflects the way relevant people have used the words in the constitution.

What did the constitution writers think they were doing?

The constitution was put together by many hands over ten years. The qualifications for candidature were drafted by the Tasmanian attorney-general, Andrew Inglis Clark, in a straightforward and inclusive way: at least 21 years old, resident of the electorate, and a subject of the Queen (which would have included New Zealanders, Canadians and Britons).

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But Samuel Griffith, the Queensland prime minister (as they were then called), wanted a section on disqualification. This would cover felony, bankruptcy and:

any person who has taken an oath or made a declaration or affirmation of allegiance to a Foreign Power or done any act whereby he becomes a subject or citizen … of a Foreign Power.

So there were separate sections on qualifications and disqualifications, from different sources and reflecting different values, and they took this form in the successive drafts of the constitution.

In the smoke-filled room: the drafting committee

The final session of the constitutional convention was held in Melbourne early in 1898. There was no further discussion of what became the now-infamous section 44, and a drafting committee took over to prepare a final draft.

Edmund Barton – soon to become Australia’s first prime minister – was the chair and dominant figure. He insisted on working till 4 or 5am, even though the other two members of the committee had gone to bed and only Robert Garran, the secretary, was left to maintain the illusion of a committee.

Sir Edmund Barton, who snuck in 400 amendments to the constitution at the last minute.
Parliamentary Education Office

After four days of drafting, Barton presented the convention, on its second-last day, with 400 amendments. He proposed a three-hour break for the delegates to study them, after which they could be put to the vote en bloc.

Barton assured the convention that there was only one amendment of substance – to section 44(ii). What he did not say was that section 44(i) had been completely rewritten, changing it from an active voice (“done any act whereby”) to a passive voice (“is a subject or citizen … or is entitled to”).

No attention was drawn to this change, there was no explanation of it, and there was no time for debate on any clause unless someone objected to it. The constitutional text that proved so significant more than a century later was a last-minute change, drafted in private and accepted out of weariness.

In his history of the convention, J.A. La Nauze points out that, by this stage, the delegates “had had enough”, but muses:

it may one day interest a curious lawyer to inquire whether judicial review has lingered with significant consequences on new words approved on trust and intended … merely ‘to put the wishes of the convention in more complete and concise form’.

As it turned out, it interested more than the curious lawyer, and created a problem which has yet to be adequately managed.

Appealing to the umpire?

The constitution was rather unclear about how these provisions would be enforced. It said both that questions about qualification could be settled by each house, but also that “any person” who believed that an elected representative was disqualified by section 44 could sue them in “any court of competent jurisdiction”.

In any case, there was little call for either until the High Court decided in 1999 that the UK was a foreign power.

Even then it refused to hear a case calling for Tony Abbott and Julia Gillard to produce evidence they had renounced their UK citizenship, on the basis that they had declared that they were qualified, and so the court should presume that they were. To do otherwise would be a vexation and an abuse of the court’s time.

But when the court did deign to interest itself in the matter, it took the traditional High Court view that it was not interested in the problem, or what the writers of the constitution were trying to do, but only with the possible meaning that a black-letter lawyer could squeeze from these words, irrespective of its impact on the governing of Australia.

Where does this leave us?

The situation now is that the qualifications for candidature for the Australian parliament are set by the parliament, but the disqualifications are largely set by foreign governments via the High Court. This diminishes the ability of electorates to choose the representative they want (though, when given the chance, electorates show what they think of the High Court’s action by returning the ousted members in the ensuing byelection).

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And the High Court’s escapade in the china shop is not yet over, for it has yet to rule on the disqualification of those who are “entitled to” foreign citizenship, even if they have not applied for it. If the court applied the same logic that it has used in the cases already decided, this would disqualify not only any Jew, but also anyone with a Jewish parent, grandparent or spouse, all of whom are entitled to Israeli citizenship under the Israeli Law of Return.

The best course would be to start with recognising the problem, rather than searching for a preferred solution. In contemporary Australia, identities are often complex, and citizenship entitlements may be multiple and overlapping. How these are to be recognised in the qualifications for candidature demands a period of public discussion culminating in political action.

The only way we could get this is to take the matter out of the hands of the High Court and foreign governments and return the task of defining qualifications and disqualifications for candidature to parliament. This could be done by adding to section 44 the phrase “until the parliament otherwise provides”, which is used in section 30 on qualifications, and at a number of other points in the constitution.

This would be a logical and constitutional response to the political problem that has landed on us. If the five main parties in the parliament (all of which have had their parliamentary representation threatened by the High Court’s actions) supported a referendum to achieve this change, it would probably be carried.

The voters, too, as they showed in New England and Bennelong, have had enough. They want the political leaders to lead.

Hal Colebatch, Visiting Professorial Fellow, UNSW

This article was originally published on The Conversation. Read the original article.

Australian politics explainer: the writing of our Constitution

The British parliament passed the Commonwealth of Australia Constitution Act in 1900.
Museum of Australian Democracy

Ryan Goss, Australian National University

The Conversation is running a series of explainers on key moments in Australian political history, looking at what happened, its impact then, and its relevance to politics today.

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Since coming into effect in 1901, Australia’s Constitution has shaped – and been shaped by – our political history.

The Constitution is the highest law in Australia. It shapes the laws the federal parliament may pass, how it administers those laws, the way our courts work, and how the federal government interacts with the state and territory governments.

What happened?

In the late 1800s, there were six British colonies on the Australian continent. These stand-alone colonies had their own parliaments and governments, their own colonial constitutions, and even their own militaries.

When travelling from one colony to another, people had to pass through a customs check before crossing the border. And they had to pay taxes on goods they were carrying.

In the 1880s and 1890s, representatives of the colonies began the discussions that would lead to federation. They wanted to join together to create a national government while maintaining political power for each colony’s own government.

These discussions, which culminated in the Constitution we have today, were driven by many factors. Among these were the need to make trade easier within Australia, a desire to control immigration, and to improve defence arrangements for the continent.

In part, the Australian Constitution’s drafters were inspired by the United States and its Constitution; the structure of our Constitution looks quite similar to the Americans’.

But, crucially, Australian Federation did not involve a revolution against Britain. Instead, at Federation, Australia would maintain close links to the parliament in London, the British courts and the British monarchy.

Aside from some discriminatory provisions, the Constitution would not include acknowledgement or recognition of Indigenous Australians. Our system of government became a mixture of British-inspired elements, American-inspired elements and uniquely Australian elements.

Voters were asked to approve the draft Constitution at referendums held in all the colonies. All the colonies eventually voted in favour – though some only narrowly, and with most women and Indigenous Australians excluded from voting.

After being passed into law by parliament in London, the Constitution came into effect on January 1, 1901.

Edmund Barton and Alfred Deakin are considered founding fathers of Australia’s federation.
National Library of Australia

What was its impact?

All this history has shaped our Constitution, and continues to shape our political history. Our Constitution establishes:

• a federal system of government – not every national government is a federal government;

• a system of representative government: we vote for those who govern us, and hold them accountable;

• a system of responsible government: our prime minister and ministers are members of parliament, chosen by the parliament and accountable to the parliament; and

• a constitutional monarchy: Queen Elizabeth II is the constitutional head of our executive government, and our head of state.

But it’s also important to remember that much goes unmentioned in our Constitution. Many key elements of our system of government don’t appear in the text of the Constitution. The prime minister, for instance, doesn’t rate a mention.

To help make up for the omissions, our political and legal history has been guided by rules known as constitutional conventions. These conventions are shaped by British history and by Australian history, and have occasionally proven very controversial.

Unlike many constitutional systems, Australia lacks any form of comprehensive bill of rights protections. Instead, Australia’s constitutional system was built on the principle that:

… the rights of individuals are sufficiently secured by ensuring, as far as possible, to each a share, and an equal share, in political power.

Nonetheless, the text of our Constitution shapes what our governments can do, and the way in which they can do it. The Constitution affects how governments spend money, the position of Indigenous Australians, and policy in areas ranging from industrial relations and marriage to the environment and asylum seekers.

Significantly, the Constitution also protects our role as citizens in choosing our representatives and in holding them accountable.

What are its contemporary implications?

The Constitution is hard to change. The federal parliament first must approve any proposed amendment. The amendment must then pass a referendum by a “double majority”: approved by a majority of voters as well as a majority of voters in a majority of states.

In 116 years, 44 attempts have been made to change the Constitution. Only eight have succeeded.

The failed attempts have included efforts to switch parliamentary terms from three years to four years, multiple efforts to protect basic civil rights, and the unsuccessful republic referendum to replace the monarch with an Australian. The last time the Constitution was successfully amended was in 1977.

Some may see this inflexibility as a strength: the Constitution is stable and enduring. But it also makes the Constitution very hard to update in response to changing times and changing values.

As a result, the Constitution is a document that reflects the priorities of the late 19th century more than the early 21st century.

Unsurprisingly, after 116 years of federation, there are many contemporary debates about the Constitution. Some are about how we should interpret the Constitution we have. Others are about finding ways to update our system of government without having to amend the Constitution.

But there are also debates about changing the Constitution, such as whether Indigenous Australians should be recognised in symbolic or substantive ways, whether the role of local government should be enshrined, or whether to replace the monarchy with an Australian head of state.

Or should we undertake a much more serious overhaul?

These questions reflect our history, and the answers to them will shape our future. But they also raise broader questions for all Australians: what do we expect from our politics? And what do we expect from our Constitution?

Ryan Goss, Senior Lecturer in Law, Australian National University

This article was originally published on The Conversation. Read the original article.