Nationality challenge: expect unexpected

by on September 8, 2017

THERE’S one thing you can expect from the High Court when it interprets the Constitution: the unexpected. For example, it has permitted the same-sex plebiscite despite some of Australia’s best legal brains saying that that was unlikely.

Next month it is to hear the challenge against the eligibility of seven members of parliament on grounds that they breached the foreign-allegiance bar provided for in Section 44.

In expecting to be surprised, I think the High Court might well say that all seven members of parliament under challenge were eligible to stand for election.

This is why.

Section 44 provides that “Any person who is . . . a subject or a citizen . . . of a foreign power . . . shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.”

It is fairly plain. If you are a citizen of another country you have had it, even if you are an Australian citizen as well. But what if, for example, a mischievous Vladimir Putin got the Russian Parliament to grant Russian citizenship to every member of the Australian Parliament?

High Court judges have referred to that sort of hypothetical in several cases and said that Section 44 would not disqualify people who had irrevocable foreign citizenship foisted on them.

That is the first reading down or reinterpretation of black and white words.

In 1988 the court decided Robert Wood’s eligibility. At the time of election he was “a British citizen who had not received Australian citizenship”. The court held him ineligible.

Then came the big case of Phil Cleary in 1992. Cleary had handsomely won the normally safe Labor seat of Wills as an independent when the Keating Government was on the nose.

His election was challenged because he was a school-teacher and therefore holding an office of profit under the Crown, which is also prohibited by Section 44.

Cleary was held to be ineligible. The court ordered a new election, not a recount as the court has done in cases of a senator’s ineligibility.

Interestingly, though, the challenger to Cleary came fourth in the election and needed to knock out the Liberal and Labor candidates as well.

As it happened they were born in Switzerland and Greece. They had taken out Australian citizenship decades ago and were utterly Australian.

What did the court do? Five of the seven judges concentrated on international law. They said that if a country’s citizenship laws bestowed citizenship upon a person and provided for a renunciation of it in a way recognisable in international law then the Australian parliamentary candidate had to renounce or retract citizenship of that country according to that country’s law or fall foul of Section 44.

In short, eligibility for the Australian Parliament would be determined by the acceptability under international law of foreign citizenship law.

Sure, all the judges accepted that a mischievous law foisting citizenship upon Australians unawares would not offend Section 44. But a majority said that if a foreign power’s law gave someone their citizenship in a way acceptable to international law, that person would need to take all reasonable steps to renounce that citizenship, especially if the country provided the means of doing so, or fall foul of Section 44.

The majority held that the Swiss and the Greek had not taken all reasonable steps because Swiss and Greek law provided for a citizenship-renunciation process which they did not do. The majority held that the candidates of Greek and the Swiss origin were therefore ineligible.

The two minority judges, Mary Gaudron and William Deane, however, put a different view. They looked at the purpose of Section 44. They took the sensible view that people who had taken out Australian citizenship decades ago and did not avail themselves of the foreign country’s passports, social security and the like should not fall foul of Section 44 even if they had not gone through the foreign county’s renunciation procedures.

Gaudron was especially incisive. She pointed to the fact that at the time these two candidates took out citizenship the oath used the words: “renouncing all other allegiances”. It no longer does.

But Gaudron and Deane were in a minority. However, they represented what has now matured into an independent Australian jurisprudence.

Deane, in minority, in a related area said Australia could not deport people convicted of crimes who had lived in Australia for a long time since childhood even if they had not taken out citizenship. At that time the government was attempting to deport someone who had come with his parents from Eastern Europe as a toddler and could only speak Aussie English after he was convicted of some medium range offence.

My guess is that the court will shun all this external stuff about whether international law would recognise that a foreign country had conferred upon someone who is basically Australian their citizenship and whether that conferring was of an moment in Australian law.

I think that they will come around to the Deane-Gaudron view that we decide who are Australians according to Australian laws, not foreign laws and international laws.

It seems absurd that someone who has sworn at a citizenship ceremony that their allegiance is to Australia cannot stand for Parliament without having to worry about the law of a foreign country and international law to see whether they have to take active steps to get rid of a foreign citizenship. The Australian swearing in should be enough.

It seems absurd that someone born in Australia (or born of Australian parents while they were temporarily overseas) cannot stand for Parliament without having to worry about the law of a foreign country and international law to see whether they have to take active steps to get rid of a foreign citizenship. The Australian birth should be enough.

But how could the High Court rule in such a way, against the precedent of an earlier case?

Well, they can do it quite easily because one thing has not been stressed about the Cleary case. Once the court had held that Cleary was ineligible and there should be a new election, all else was irrelevant. It was obiter dicta, as the lawyers say.

Everything the judges said about the challenge to the other two candidates on the ground of their dual citizenship was legally irrelevant. Interesting, but non-binding.

In the case of Heather Hill in 1999 the court concentrated on whether Britain was somehow not a “foreign power”. The court held Britain was a foreign power. Hill was born in Britain, but critically had used her British passport after taking out Australian citizenship, unlike the Swiss-born and Greek-born in Cleary’s case. So this case would not prevent a rethink of Cleary’s case even though Hill was held to be ineligible.

I expect the unexpected.

The High Court will err on the side of not applying foreign and international law to whether someone can stand for the Australian Parliament. Birth or citizenship ceremony should be enough unless you have actively used your foreign citizenship to get a passport or social security, for example.

Whatever their politics, you cannot deny the essential Austraianness of the Gang of Seven. And I think the High Court will see that.
This article first appeared in The Canberra Times and other Fairfax Media on 9 September 2017.

{ 1 comment… read it below or add one }

Grant Agnew 09.12.17 at 9:59 am

Like Malcolm Turnbull, I lack Crispin’s sure-footedness in commenting on matters before the High Court. Unlike Malcolm Turnbull, though, I will comment on something which could bring down his government because it fails the pub test. This is the test which it must pass, because the matter is not before the High Court and the High Court has never yet commented on the words involved. According to Professor George Williams at the National Press Club recently, we can therefore take the words involved only at their face value.

Crispin’s article in Saturday’s Canberra Times quoted only one half of s44(i). The other half reads as follows:
“any person who… is… entitled to the rights and privileges of a subject or a citizen of a foreign power… shall be incapable of being chosen or of sitting as a… member of the House of Representatives”.

This section outsources the determination of who may sit in our Parliament. It is foreign countries, not Australia, which may decide who is a foreign citizen or not, or who has the rights and entitlements of a foreign citizen.

And the UK for one has already done exactly what the section says, with its patrial laws. In British law, anyone —
who was a Commonwealth citizen or a British subject on 31st December 1982,
who has not ceased to be a Commonwealth citizen since then,
who had a parent who was a British citizen on account of being born in the UK,
may claim the right of abode in the UK.

All people with right of abode in the UK have the following other rights and entitlements as well:
an unconditional right to live, work and study in the UK;
the entitlement to use the British gate at entry points in the UK;
the entitlement to apply for social security and welfare benefits in the UK;
the right to vote in the UK; and
the right to stand for public office in the UK.

Anyone in any pub would say that these are the rights and entitlements of a citizen of the UK. Indeed, it’s hard to imagine any more rights and entitlements which a citizen might have — and the UK is a foreign power. Therefore, at least the following three Liberals are incapable of sitting in the Australian Parliament: Tony Abbott, Sussan Ley and Ann Sudmalis. Anyone in any pub would say that they must be thrown out of Parliament at once.

It doesn’t matter whether any of them may have renounced UK citizenship in the past. All of them are still entitled to the rights and privileges of UK citizenship because of the inescapable fact that they have British parents. Tony Abbott is not stuck here in Australia; he can always go back home and stay there, which brings him within the scope of s44(i). You might say that he can no longer access the rights and entitlements of a UK citizen by going through the front door, but he can certainly access them by going through a side door. And he can’t plead ignorance — every overseas Brit knows all about patriality.

None of these three has been referred to the High Court. But they all fail the pub test. There can be no doubt about it. They must go. Now. And Bill Shorten might have to go with them.

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