Citizenship Saga
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THE CITIZENSHIP SAGA Malcolm Turnbull and Barnaby Joyce on the night of Joyce's by-election win, 2 December 2017. | AAP Image THE CITIZENSHIP SAGA R have been elected as a consequence of failing to take ‘all steps that are reasonably required’ to renounce their MORGAN BEGG Research Fellow at the foreign citizenships. CITIZENSHIP Institute of Public Affairs The Constitutional provision in question, section 44(i), disqualifies from federal parliament any ne of the more person who: consequential political is under any acknowledgement stories that dominated of allegiance, obedience, or Oheadlines in 2017 was adherence to a foreign power, or is the prolonged dual citizenship a subject or a citizen or entitled to crisis upending the Commonwealth the rights or privileges of a subject parliament. The complete paralysis or a citizen of a foreign power. that has resulted is nothing short of The requirement that those who a humiliating scandal. However, the serve in parliament are free of foreign larger scandal is the High Court’s loyalties is entirely proper. However, excessively broad interpretation the High Court’s interpretation of of section 44 of the Australian foreign allegiance as established Constitution that has created this by the activist court under Chief debacle, rejecting the original Justice Anthony Mason in the 1992 intention of the founding fathers case of Sykes v Cleary is a departure in the process. It demonstrates the from common sense and sound need for conservatives to revive the constitutional philosophy. doctrine of constitutional originalism. It all began in 2011, when Perth- THE DANGER OF based lawyer John Cameron dug into LITERALISM IS THAT the citizenship details of then Prime > THE MEANINGS OF Minister Julia Gillard and opposition WORDS CHANGE OVER leader Tony Abbott. It was not until TIME. SOMETIMES, June 2017 that Cameron ultimately AS IS THE CASE WITH found proof of a parliamentarian CITIZENSHIP, THAT CHANGE CAN BE with dual citizenship, when the New SIGNIFICANT. Zealand Internal Affairs Department confirmed Greens senator Scott Ludlam was in fact a citizen of New The consequence of the court’s Zealand through birth. reasoning means that a person can be Ludlam’s resignation in July a subject of a foreign power without was followed by similar discoveries their knowledge. It also means that or allegations of foreign loyalties the laws of a foreign country have of Greens senator Larissa Waters, constitutional repercussions in Nationals senators Matt Canavan Australia. At its most absurd, this and Fiona Nash, One Nation means that the Australian-born Mr senator Malcolm Roberts, senator Joyce is considered a New Zealand Nick Xenophon and Deputy Prime citizen under the Constitution, Minister Barnaby Joyce. despite his New Zealand-born father The High Court ruled in October having moved to Australia prior to that, with the exception of Senator the introduction of retrospective New Canavan, irrespective of whether Zealand legislation establishing the the parliamentarians were aware dominion’s own citizenship. of their citizenship status, six of Apologists for the High Court’s the Citizenship 7 were ineligible to decision have celebrated the literal DECEMBER 2017 | IPA Review 31 R THE CITIZENSHIP SAGA interpretation. And it’s true: from foreign-born person could become a modern perspective, section 44 a naturalised subject, automatically can be construed broadly. However, discarding the previous allegiance the danger of literalism is that the in the process. Essentially, it was meanings of words change over time. not possible to be a subject of two Sometimes, as is the case sovereigns, making the modern with citizenship, that change can concept of dual-citizenship just be significant. that—a modern invention. Moreover, Because of this, the only sound obtaining a foreign citizenship at the interpretative method is to consider time of the Constitution’s drafting the words of the Constitution as required an obvious positive act, as they were understood at the time well as a repudiation of the domestic they were introduced. This method allegiance. Under this reasoning, the of interpretation, broadly described disqualified parliamentarians could as ‘originalism’, involves two lines of not be regarded as having foreign inquiry. Both would confirm that in loyalties as no foreign allegiances the case of section 44, the original were given and no foreign citizenship intention and sensible operation of was sought. section 44 is far more limited than the This requirement for an active High Court has found. element is reflected in the debates surrounding the drafting of the Australian Constitution. At the IT IS A FORM OF National Australasian Convention JUDICIAL ACTIVISM in Sydney in 1891, the draft bill > THAT GIVES THE to constitute the Commonwealth COURTS THE POWER included clause 46, the precursor TO CHANGE THE to section 44, which disqualified Senator Larissa Waters MEANING OF THE Canada CONSTITUTION any person: THROUGH ITS who has taken an oath or made a JUDGMENTS. declaration or acknowledgment of allegiance, obedience, or adherence to a Foreign Power, The first line of inquiry is to or has done any act whereby he consider how the words of section has become a subject or citizen these amendments alters the sense, 44 were understood by wider society or entitled to the rights or except where the Convention has at the time they were introduced. privileges of a subject or citizen practically directed it to be done’. No In particular, the concept of of a Foreign Power... until the such direction was given in relation to citizenship itself today bears disability is removed by a grant of the disqualification provision. Days little resemblance to citizenship a discharge... or otherwise. later during the same convention, at the time of federation. Today The draft provision was adopted at Isaac Isaacs congratulated the drafting citizenships are handed out liberally later constitutional conventions in committee for its ‘very good work... in by most countries, with no deeper Sydney and Adelaide in 1897, both the attainment of brevity.’ meaning or expectations placed on with little debate. It was revised before It is not surprising that the the recipients. This is a remarkable taking its final form at the Melbourne rewording was not a contentious change from a century ago, where Australasian Federal Convention move. Given the wider understanding national allegiance carried serious in 1898, where the official records of citizenship at the time, it is unlikely weight and where citizenship could of the debate show that Edmund the convention delegates could have be obtained primarily in only Barton, the chairman of the drafting conceived of just how radically the two ways. sub-committee, noted of a series meaning of citizenship would be As understood in 1901, a person of drafting amendments that ‘no altered in a relatively short period born in a country became a natural- liberties have been taken with the of time. born subject of that country, while a work of the committee... not one of At the very least, it is clear from 32 IPA Review | ipa.org.au Senator Stephen Parry Britain Senator Jacqui Lambie Britain John Alexander MP Britain Senator Skye Kakoschke-Moore Senator Scott Ludlam Britain New Zealand Senator Malcolm Roberts Britain Senator Fiona Nash Deputy Prime Minister Barnaby Joyce Britain New Zealand the convention debates that activism that gives the Courts the election. The Australian cast doubt on the passive reception of foreign power to change the meaning of the the eligibility of energy minister Josh citizenship of the type that caught Constitution through its judgments. Frydenberg on 3 November, as his the Citizenship 7 was not intended The repercussions of the High mother was born in a region of Europe to be caught by the Constitution’s Court’s decision are likely to be felt for that may now be subject to Hungarian disqualification provision. some time. In November following citizenship law. To read the words of the the High Court’s judgement, Liberal This fiasco is unlikely to end so Constitution outside of its original MP John Alexander and senator long as the High Court’s judgment intent and meaning requires the Stephen Parry, senator Jacquie is allowed to stand. Indeed, the High judge to assess how the words Lambie, Xenophon team senator Skye Court has effectively assumed for are understood at the time of Kakoschke-Moore each resigned. the judiciary the power to arbitrarily interpretation. And when words The designated replacement for Fiona disqualify members and candidates are implicitly updated to align with Nash, Hollie Hughes, was also deemed for parliament without the original the changing values, it is indistinct ineligible to take a seat in the Senate. approval of the Constitution. from living tree constitutionalism, a By-elections have been held to re-elect This is a problem that goes to the troubling doctrine of constitutional Barnaby Joyce and John Alexander, heart of constitutional jurisprudence interpretation where the constitution while ALP senator Katy Gallagher has in Australia. The solution is for is seen as being organic. In other been referred to the High Court for conservatives to resurrect the doctrine words, it is a form of judicial being a dual citizen until after the 2016 of originalism. DECEMBER 2017 | IPA Review 33.