Mr. Len Warfe

Committee Secretary Joint Standing Committee on Electoral Matters PO Box 6021 Parliament House Canberra ACT 2600 [email protected]

Re: Inquiry into matters relating to Section 44 of the Constitution

Thank you for the opportunity to make a submission in relation to the above matter. My primary aim in writing this submission is to demonstrate that  s 44(i) should remain as written and intended by its original authors  who or what is a foreign power in relation to the interpretation of s 44(i) of the Australian Constitution requires a more precise definition than appears to have been applied in previous High Court cases. To date, this fundamental aspect of s 44(i) has not been adequately dealt with.

1. There have been a number of cases in which s 44 (i) has been tested in the High Court, reviewed by a Constitutional Commission1 and by House of Representatives Parliamentary and Senate committees2,3 however s 44 (i), in its present form, has always prevailed because it is clearly written, precise and logical. It has served us well and should never be removed from the Australian Constitution or its meaning diluted.

1 Final Report of the Constitutional Commission 1988. Canberra: Publishing Service. 1988. 2 House of Representatives Standing Committee on Legal and Constitutional Affairs (July 1997). "Aspects of Section 44 of the Australian Constitution 3 Senate Standing Committee on Constitutional and Legal Affairs (1981). "The Constitutional Qualifications of Members of Parliament" 1

2. Clearly, delegates to the 1891-1900 Constitutional convention were intent on ensuring that should never have anyone with any allegiance to a foreign power determining our future. Unlike s34 and s46 in which the phrase “until the Parliament otherwise determines” is used; s 44 (i) excludes that phrase, and that precise use of language has protected Australia’s interests by ensuring that every Australian citizen must be consulted for any proposed changes to s 44 (i) which could, if adopted, expose Australia to foreign threat.

3. An early and often cited case, Crittenden v Anderson 1950 (Fullager J), although ostensibly based on testing the definitions of words within s 44 (i), failed to do so – which I will address in later pages.

4. In Nile v Wood 19874, although the petitioner claimed that the respondent’s actions against the vessels of a friendly nation indicated he had an allegiance, obedience or adherence to a foreign power, the Court did not define the meaning of ‘foreign power’, and although some cases may have determined whether a particular country is a foreign power (e.g. Sue v Hill 1999), which determined that the UK is a foreign power) precisely what makes an entity a foreign power remains to be defined.

5. What has been overlooked in previous tests of s 44 (i) and which now requires a determination by the full bench of the High Court, is to properly define what or who is a foreign power, what makes it a foreign power, and how the precise meaning of the words ‘acknowledgment of’, ‘allegiance’, ‘obedience’ and ‘adherence’ in s 44 (i) may relate to a particular foreign power. As I see it, this was not properly examined in the recent “citizenship crisis” High Court cases because the affected persons’ possible citizenship connections involved only very few countries, so the determination focussed on a very limited number of countries deemed to be foreign powers.

4 Nile v Wood [1987] HCA 62; (1987) 76 ALR 91; (1987) 62 ALJR 52 (16 December 1987) 2

What is a foreign power?

6. The common meaning of the words foreign, foreign power or foreign country is embodied in various definitions including, from the Macquarie Dictionary5: relating to, characteristic of, or derived from another country or nation; relating to relations or dealings with other countries; external to one’s own country or nation- a foreign country; outside the legal jurisdiction of the state. Other referenced definitions include: any state of which one is not a citizen, and a politically organised body of people under one government6; an entity that is directed and controlled by a foreign government or governments7.

7. These definitions align with a previous High Court judgement Sue v Hill8 which determined that the United Kingdom is a foreign power. No doubt the Court’s reasoning in Sue v Hill would extend to any number of other ‘foreign powers’ or foreign countries if any such cases arose.

8. Since the Australian Constitution was adopted, the Australian government has formally acknowledged and engaged in diplomatic relations with many countries, (foreign powers), some of which have only relatively recently been recognised as sovereign nations. For example: Albania, Bangladesh, Belarus, East Timor, Kosovo, Montenegro9. To date, the current “citizenship crisis” has been linked with only a small number of foreign countries (foreign powers), however it is assumed that any of the sovereign nations with whom Australia now conducts diplomatic relations, and which is recognised by the United Nations, is by definition a foreign power.

9. Central to my submission is the fact that Australia established diplomatic relations with the / State in 1973, and that the Holy See/Vatican City State

5 https://www.macquariedictionary.com.au/features/word/search/?word=foreign+&search word type=Dictionar y 6 http://www.synonym.com/synonyms/foreign-country 7 https://definitions.uslegal.com/f/foreign-power 8 Sue v Hill [1999] HCA 30; 199 CLR 462; 163 ALR 648; 73 ALJR 1016 (23 June 1999) 9 Full list of diplomatic missions of Australia is at: https://en.wikipedia.org/wiki/List of diplomatic missions of Australia 3

is a foreign power, like all other foreign powers with which Australia conducts diplomatic relations.

Case that the Vatican City State/Holy See is a foreign power

10. First it is necessary to understand the labyrinthine opaque relationship between the Holy See and the Vatican City State. Careful reading of the relevant history is convincing that the Holy See and Vatican City state is an intertwined inextricable entity. The Holy See/Vatican City state and its asserted governance over all Catholics operates quite differently to any other world religion. In its regions around the world it may seek to be treated as merely a religion, but it is also an established foreign power.

11. The Holy See has been recognised since antiquity. It serves as the headquarters for the Church everywhere and is responsible for the governance of all Catholics, organised in their particular Churches, Patriarchates10 (jurisdictions) and religious institutes11. It is viewed as analogous to a state while administered by the ( for Roman Court), similar to a centralised government with the Cardinal Secretary of State as its Chief Administrator, and various ‘’ (comparable to Ministries and executive departments)12.

12. The US Department of State advises that the Holy See is the universal government of the and operates from Vatican City State, a sovereign, independent territory. The is the ruler of both Vatican City State and the Holy See. The Holy See, as the supreme body of government of the Catholic Church, is a sovereign juridical entity under international law13.

13. The United Nations classifies the Holy See as a State, and since 1964 has been one of the two current observer states at the UN. It gained all rights of full membership

10 Meaning: From Encarta Dictionary (UK), ‘The office, term of office, area of jurisdiction, or residence of a of a Christian church’. 11 https://en.wikipedia.org/wiki/Holy See 12 Ibid 13 US Department of State https://www.state.gov/r/pa/ei/bgn/3819.htm 4

including to participate in debate and intervene on any issue on the agenda except voting on 1 July 200414. It is a party to a number of international instruments (including a series of international human rights treaties) and enjoys membership of various United Nations subsidiary bodies, specialised agencies and international intergovernmental organisations15.

14. It is noteworthy that the State of Palestine, the only other UN observer state, also has an embassy in Australia16 and Australia has a representative office in Palestine17. So, the State of Palestine and the Holy See/Vatican City State share the same UN status, both states have an embassy in and conduct diplomatic relations with Australia, and yet I have no doubt that the Australian government considers the State of Palestine to be a foreign power.

15. As an independent sovereign entity, the Holy See holds over the state of Vatican City. Diplomatically, the Holy See acts and speaks for the whole church, and is recognised by other subjects of as a sovereign entity headed by the Pope (who is also the supreme monarch of Vatican City State). The Holy See maintains diplomatic relations with 181 countries18.

16. As at 200819 five world countries had absolute monarchies with absolute power vested in a single person: Vatican City, Brunei, Swaziland, Saudi Arabia and Oman. Australia has diplomatic relations with three of those five countries - Holy See/ Vatican City State, Brunei and Saudi Arabia.

14 https://en.wikipedia.org/wiki/Member states of the United Nations#Observers and non-members 15 Hoy See, The country brief. Australian Government Department of foreign Affairs and Trade http://dfat.gov.au/geo/holy-see/pages/holy-see-the-country-brief.aspx 16 http://www.palestine-australia.com 17 https://en.wikipedia.org/wiki/List of diplomatic missions of Australia#Asia 18 Australian Department of Foreign Affairs and Trade: http://dfat.gov.au/geo/holy-see/Pages/holy-see-the- country-brief.aspx 19 https://timesofindia.indiatimes.com/india/Learning-with-the-Times-7-nations-still-under-absolute- monarchy/articleshow/3692953.cms 5

17. The Holy See has maintained an (Embassy) in Canberra since 1973 and Australia has had a resident Ambassador to the Holy See since 200820. DFAT notes that the 2008 appointment of a resident Ambassador to the Holy See has allowed Australia to expand dialogue on issues including human rights, global governance, global and regional security including arms control, peacekeeping, refugees and anti people smuggling issues21 - which all appear to be matters that Australia’s Ambassadors around the world would discuss with their counterparts in all foreign countries with which we maintain diplomatic relations.

18. Vatican City State’s website states: Vatican City State was founded following the signing of the Pacts between the Holy See and the Italian government led by on February 11th 1929. These were ratified on June 7th 1929. Its nature as a sovereign State distinct from the Holy See is universally recognized under international law, and Vatican City State is governed as an absolute monarchy. The Head of State is the Pope who holds full legislative, executive and judicial powers22.

19. Article 2 of ‘Vatican City State Fundamental State 26 November 2000’ states: The representation of the State in relations with foreign states and with other subjects of international law, for the purpose of diplomatic relations and the conclusion of treaties, is reserved to the Supreme Pontiff, who exercises it by means of the Secretariat of State23.

20. Further, it states: The Catholic Church carries out its mission of announcing the truth of the for the salvation of all humanity and in the service of peace and justice in favour of all peoples, both through the various specific and local Churches spread throughout the world, as well as through its central government. This is made up of the Pope and the Departments that assist him in carrying out his responsibilities towards the universal Church (identified as the or Holy See). The Pope

20 Ibid http://dfat.gov.au/geo/holy-see/Pages/holy-see-the.aspx and http://dfat.gov.au/geo/holy- see/pages/holy-see-the-country-brief.aspx 21 Ibid 22 http://www.vaticanstate.va/content/vaticanstate/en/stato-e-governo/note-generali.html 23 https://web.archive.org/web/20080226203911/http://www.vaticanstate.va/NR/rdonlyres/3F574885-EAD5- 47E9-A547-C3717005E861/2522/FundamentalLaw1.pdf 6

lives in Vatican City where several of the aforementioned Departments are to be found24.

21. As such, despite an ancient and perhaps confusing governance structure, its labyrinthine structure, antiquity or religious origins cannot be used to dismiss the Holy See/Vatican City State’s now internationally recognised sovereignty, and thus its status in Australia as a foreign power. It is no different to any other sovereign state with which Australia conducts diplomatic relations. It has its own Sovereign Head of State (The Supreme Pontiff), a Secretary of State, Judicial and legal system, governance structure and currency, and has also used Euro currency since 1999. Specific departments even deal with health, security, telecommunications etc25. Although its outward face presents as merely a Church, it is both a foreign power and a Church.

22. The Holy See has been listed by the US Department of State as one of the major countries of concern for money laundering26. It is relevant in this context that the US Department of State classifies the Holy See as a Country.

23. The Holy See/Vatican City State legal system (Canon Law) is described as the system of and legal principles made and enforced by the hierarchical authorities of the Church to regulate its external organization and government and to order and direct the activities of Catholics toward the mission of the Church27.

24. The actual subject material of Canon Law is not just doctrinal or moral in nature, but all-encompassing of the human condition, (as surely the legal systems of other countries seek to be). It is described as having all the ordinary elements of a mature legal system: laws, courts, lawyers, judges28 and is a fully articulated legal system for

24 http://www.vaticanstate.va/content/vaticanstate/en/stato-e-governo/note-generali/origini-e-natura.html 25 http://www.catholic-pages.com/vatican/vatican city.asp 26 US Department of State Bureau of International Narcotics and Law Enforcement Affairs 2013 International Narcotics Control Strategy Report (INCSR) Report March 5, 2013 at https://www.state.gov/j/inl/rls/nrcrpt/2013/vol2/204062.htm 27 Della Rocca, Manual of Canon Law, pg. 3 28 Edward N. Peters, "A Catechist's Introduction to Canon Law", CanonLaw.info 7

the Latin Church29. Canon Law is also described as the first modern Western legal system30 and the oldest continuously functioning legal system in the West31.

25. In short, the Vatican City State/Holy See has international status as a sovereign entity and as such is indisputably a foreign power. It holds a significant level of status within Australia and our government, and I will argue that many Australians, as observant Catholics – including some MPs and Senators - have allegiance, obedience and/or adherence to the Holy See/Vatican City state’s policies (Canon Law), and that, as per s 44 (i) of the Australian Constitution, any such person shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives. Notable politicians who have openly declared their Roman Catholic affiliations and observance of that Church’s teachings include Barnaby Joyce32, Matt Canavan33, and indeed the Prime Minster Malcolm Turnbull34 – two of whom were involved in the recent High Court cases in relation to s 44 (i).

26. As previously noted, the Holy See/Vatican City state is responsible for the governance of the Catholic Church and all Catholics, (my emphasis) everywhere, organised in their particular Churches, Patriarchates and religious institutes. Thus, as the Pope is the supreme ruler of the absolute monarchy of the Holy See/Vatican City state, all Catholics are his subjects and unless they have renounced their Catholicism or have been excommunicated, are required to obey the Church’s laws. Therefore, as per wording of s 44 (i), observant Catholics are under an acknowledgement of allegiance, obedience, or adherence to the laws of a foreign power and are entitled to the rights or privileges of a subject of the Holy See/Vatican City state.

29 Manual of Canon Law, pg. 49 30 Berman, Harold J. Law and Revolution, pg. 86 & pg. 115 31 Dr. Edward N. Peters, CanonLaw.info Home Page 32 Barnaby Joyce and the Catholic Church http://forum.onlineopinion.com.au/thread.asp?discussion=7844 33 Senator Matthew Canavan found God in Holy Matrimony. The Catholic Leader 20th September 2016 http://catholicleader.com.au/people/queensland-senator-matthew-canavan-found-god-in-holy-matrimony 34 The faith story of Malcolm Turnbull, The Melbourne Anglican 1st October 2015 http://tma.melbourneanglican.org.au/news-malcolm-turnbull-faith

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27. Despite some recent changes to some state’s laws in relation to suing for historic clerical abuse cases, in 2016 lawyer Judy Courtin pointed out that Australia continues to be the only country in the common law world in which there is no legal entity for the Catholic Church that can be sued by victims for the historic sex crimes of its . Ms Courtin stated that this barrier to justice holds firm, despite the Royal Commission making a sound and easily implemented (interim) recommendation that, unless a proper defendant with sufficient assets to meet its liability is nominated by the church authority, then the property trust (the only legal entity that does exist) can be sued35. This further emphasises that the Catholic Church in Australia is a foreign power with its identity firmly attached to the Holy See/Vatican City State, from where all its governance emanates.

28. Recent reactions from Roman Catholic Church leaders in Australia to various final recommendations of the Royal Commission into Institutional Child Sexual Abuse, confirmed that it is the Holy See policies which will dictate the Australian Roman Catholic Church’s responses to the Royal Commission’s findings, with Denis Hart – Leader of the Nation’s Catholic clergy via the Australian Catholic Bishops Conference - stating that it was not within his competency to change (Church policy) but he will certainly see that the recommendation is passed to the Holy See, and they will then decide36. This accords with my understanding that all appointments to the Catholic Church’s hierarchy in Australia are determined in the Holy See/Vatican City state, and that its laws (Canon Law) prevail over those personnel and the Church’s subjects/adherents/followers.

29. In August 2017, Archbishop Hart warned the church's 180,000 employees37 they were expected to uphold its teachings "totally", and defiance would be treated "very seriously"38. The Archbishop was saying that all Catholics are expected to support the

35 http://www.smh.com.au/comment/victorian-government-should-change-law-to-allow-catholic-church-to-be- sued-20160623-gpqaoo.html 36 http://www.abc.net.au/news/2017-12-15/denis-hart-rejected-calls-for-priests-to-break-confessional- seal/9263526 37 More recently the church itself has confirmed it has 220,000 employees See: https://www.theage.com.au/interactive/2018/catholic-inc-what-the-church-is-really-worth 38 http://www.smh.com.au/federal-politics/political-news/married-sunday-fired-monday-churches-threaten-to- dismiss-staff-who-wed-samesex-partners-20170817-gxy4ds.html 9

Vatican City State and its Canon Law and in doing so should be prepared to break Australian law.

30. Are members of a church who state that they will willingly break Australian Law, encourage others to also break it, and are obliged to break it in order to comply with the law of another entity displaying or acknowledging an allegiance, obedience and adherence to a foreign power? I think so.

31. The threat of excommunication still looms large for any Catholic who does not observe Canon Law. There is an alarmingly long list of transgressions added each Century from 325 AD as excommunicable offences under Canon Law 39. Notably the longest list of transgressions occur in our supposedly enlightened 20th and 21st Centuries. Likewise for the lists of persons excommunicated each Century40, demonstrating that the Holy See/Vatican City State expects that its subjects will adhere to ancient Canon Law despite it being at odds with so much of modern society’s legal principles.

32. Surely then, under Holy See/Vatican City State Canon law, the threat of excommunication demands from all persons that it has governance over (all Catholics) an allegiance, obedience, or adherence to its Laws.

33. Again in August 2015, Archbishop Hart and senior Jesuit Priest Professor Fr. Frank Brennan were both quoted as saying that they would break Australian secular law before breaking the confessional seal to report child institutional sex abuse41. Such rhetoric cannot be dismissed as an unconsidered knee jerk reaction on the day to a questioning media. Fr. Brennan is quoted as saying in 2016 “If a law is introduced to say that a priest should reveal a confession, I'm one of those priests who will disobey the law 42", and Archbishop Hart is quoted as saying in 2011 "I have no hesitation in stating that priests will guard the sanctity of the seal of confession with their very

39 https://en.wikipedia.org/wiki/List of excommunicable offences in the Catholic Church 40 https://en.wikipedia.org/wiki/List of people excommunicated by the Catholic Church 41 http://www.abc.net.au/news/2017-08-15/royal-commission-child-abuse-priest-perspective/8807216 42 http://www.abc.net.au/news/2017-08-14/breaking-the-seal-of-confession-could-pit-church-against- state/8805126 10

lives. They would certainly undergo imprisonment rather than violate it”43, which I gather is consistent with a millennium of Catholic practice and law.

34. So, a foreign entity will decide on whether it and its subjects, adherents and obedients will comply with Australian law!

Meaning of the words ‘any acknowledgment of’, allegiance, obedience and adherence.

35. In its 27th October 2017 judgment44 the High Court interpreted s 44 (i) according to the “ordinary and natural” meaning of its language45, so what remains is to consider the ordinary and natural meaning of these words in relation to a particular foreign power – in this case the Holy See/Vatican City state – although “ordinary and natural” meaning may well become relevant in other cases where a person or entity’s allegiance is questioned.

36. The Macquarie Dictionary46 provides these most relevant meanings for the four words:

Acknowledgment 1. the act of acknowledging or admitting 2. a recognition of the existence or truth of anything

Allegiance 1. the obligation of a subject or citizen to their sovereign or government; duty owed to a sovereign or state 2. observance of obligation; faithfulness to any person or thing

Obedience

1. the state or fact of being obedient

43 Ibid 44 Commonly referred to as the Citizen Seven case 45 http://www.hcourt.gov.au/assets/publications/judgment-summaries/2017/hca-45-2017-10-27.pdf 46 https://www.macquariedictionary.com.au 11

2. the act or practice of obeying; dutiful or submissive compliance 3. a sphere of authority, or a body of persons, etc., subject to some particular authority, especially ecclesiastical 4. authority or rule, especially ecclesiastical, as over those who should obey

Adherence 1. the quality of adhering; fidelity; steady attachment 2. the act or state of adhering; adhesion

The Oxford Dictionary47 provides these most relevant meanings for the four words:

Acknowledgment 1. Acceptance of the truth or existence of something 2. Recognition of the importance or quality of something

Allegiance 1. Loyalty or commitment to a or to a group or cause.

Obedience 1. Compliance with an order, request, or law or submission to another's authority 2. Observance of a monastic rule

Adherence 1. Attachment or commitment to a person, cause, or belief

37. These definitions clarify the ordinary and natural meaning of s 44 (i) and are convincing that there is no doubt that a person born into the Roman Catholic faith, who is baptised, confirmed, and describes themselves as a “practising” or “observant” follower of the Catholic Church is by definition a Catholic and therefore has acknowledged an allegiance, obedience and/or adherence to the laws of the

47 https://en.oxforddictionaries.com/explore/australian-vocabulary 12

Catholic Church, headquartered in the Holy See, which, as previously established, is responsible for the governance of all Catholics.

MPs who have declared allegiance to the Roman Catholic Church may be in conflict with s 44 (i) 38. Accordingly, observant Catholic MPs and Senators who accept the Church’s directives on matters before Parliament and vote according to the directives of the Church, are exercising their allegiance, obedience and adherence to a foreign power, and are in doubt as eligible members of Parliament in relation to S 44 (i) alone. It is the very issue S 44 (i) seeks to avoid isn’t it?

39. I therefore submit that my earlier analysis of the meaning of “foreign power” demonstrates that the Holy See/Vatican City State is by definition a foreign power, and that observant Catholics have met the common or natural meaning of the words any acknowledgement of allegiance, obedience, or adherence regarding their relationship with the Church/Holy See/Vatican City state (of which they are a subject), and which should exclude any such person from meeting the requirements of s 44 (i).

40. I also note the use of the words ‘any’ and ‘or’ in the phrase any acknowledgement of allegiance, obedience, or adherence, which indicates that a person does not need to have all of those attributes, but need only have an allegiance, or obedience, or adherence to the laws of the foreign power in order to be ineligible under s 44 (i).

41. There is a dearth of analysis and judgement in relation to the precise meaning of each and all of the words ‘under any acknowledgement of’ ‘allegiance’, ‘obedience’, ‘adherence’ and ‘foreign power’. In the first commentary of the Constitution in 1901, constitutional scholars Quick and Garran48 do consider the meaning of ‘allegiance’ in relation to s 44 (i) to include “the lawful obedience which a subject is bound to render to his sovereign”, and that “allegiance is natural, acquired or local”. They do not however go on to consider the meaning of ‘obedience’ or adherence’. I argue that an

48 Quick, J., and Garran, R., The annotated constitution of the Commonwealth 1901, p. 491, in Dual citizenship, Foreign Allegiance and s44 (i) of the Australian Constitution. Department of Parliamentary Library 1992 13

observant Catholic, who accepts the tenets of the Church, is bound to be obedient to his sovereign, the supreme Pontiff, the sovereign of the Holy See/Vatican City State, and has an allegiance which can be natural, acquired or local.

42. In his 1986 consideration of words in s 44 (i), constitutional scholar R.D Lumb 49 again limited his opinion to the meaning of ‘allegiance’. He did however give a wider view of the meaning of allegiance than had others before him, stating that Australian citizenship does not necessarily preclude someone from having a foreign allegiance, and that someone might have an allegiance to a country without being a citizen of that country, calling this a “de facto allegiance”. This is pertinent to my case that Australians who profess their Catholicism have an allegiance to a country (Vatican City State), usually without being a citizen of it.

43. Citizenship of Vatican City State is conferred on Cardinals residing in Vatican City State, Holy See’s diplomats and persons who reside in the City state by reason of their service; e.g. Swiss Guards. In order to gain further clarity of how allegiance, obedience and adherence and foreign power is interpreted in relation to s 44 (i), I seek the Court’s advice on whether Cardinal Pell, an Australian Citizen with dual citizenship by way of his appointment as a Cardinal residing in Vatican City, would be able to sit in the Australian Parliament. And, if Cardinal Pell is judged ineligible under s 44 (i), then why would his followers (those professing allegiance, obedience or adherence to the Catholic Church) be judged eligible to be MPs or Senators?

1950 Crittenden v Anderson High Court judgement (Fullager J)

44. Various opinion and publications claim that this judgement dealt with the issue of whether an observant Roman Catholic could be in breach of Sec 44 (i) of the Australian constitution.

49 The constitution of the Commonwealth of Australia, R.D. Lumb. 1986 in Dual citizenship, Foreign Allegiance and s44 (i) of the Australian Constitution Department of Parliamentary Library 1992

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45. The judgment failed to properly consider the petitioners case as Fullager J construed the petitioner’s case as imposing a religious test, reverting to a consideration of s116, whilst ignoring the foreign power test.

46. The petitioner sought to have the Court define what is a foreign power; in particular to determine whether the Vatican City State/Holy See is a foreign power; and to determine the meaning of allegiance, obedience or observance to a foreign power. The case should not have been treated as being a religious test. It was a case about defining what is foreign power and influence. The judgement wrongly transformed the case into a religious test.

47. The Crittenden v Anderson judgement should no longer be relied upon in subsequent judgements concerning s 44 (i), for reasons including:

48. The unpublished judgement50 was made by one Judge, sitting in chambers.

49. Under Sec 197 of the Court of Disputed Returns, no party is to be represented by counsel, except by leave of the Court. Anderson sought leave of the Court to be represented by counsel, Crittenden objected on the grounds he could not afford counsel, yet Fullager J said that was not a sufficient reason for refusing leave to the other party, and granted the leave sought, stating: I thought that this was a case in which it was desirable that counsel should appear51.

50. Fullager J realised that it was an important case, with far reaching implications which warranted the assistance of counsel, however the petitioner was treated unfairly by leaving him unrepresented, weakening his ability to put his case, whilst the respondent’s case was put to the Court through counsel. Natural justice was denied the petitioner, and a proper consideration of the petitioner’s case, consideration of what is a foreign power in relation to s 44 (i) and its implications for Australia did not eventuate.

50 Crittenden v Anderson (Unreported, High Court of Australia, Fullagar J, 23 August 1950), extracted in ‘An Unpublished Judgment on s 116 of the Constitution’, 51 Ibid Page 2 15

51. In relation to the Sec 44 (i) Foreign Power issue, Fullager J dismissed the petitioner’s concerns by saying “The matter mentioned in the petition invites a close analysis of the history of relations of Church and State over the centuries, with particular attention to the “”, to the relations of the state of with the , and the of 1929, by which Italy recognised the sovereignty of the Vatican State”52. Fullager J states “In my opinion, no such investigation can possibly be relevant to the election of a member of the House of Representatives for Kingsford Smith” - Thus preventing the close analysis he had earlier suggested was invited and preventing analysis of the central tenet of the petitioner’s case - what is a foreign power.

52. The “Roman question”, which Fullager J describes as “the relations of the State of Italy with the Papal States, and to the Lateran Treaty of 1929....” was largely irrelevant to that case and remains so today. The State of Italy’s views on its relationship with “the Papal States” and the Lateran Treaty of 1929 is and was irrelevant to the Australian Constitution. What is and was relevant is to precisely establish the definition of ‘foreign power’ in relation to the Holy See/Vatican City State in the Australian Constitution. So far, that has not been established.

53. Fullager J rejected the petitioner’s argument based on s 116 of the Constitution, therefore avoiding proper assessment of the petitioner’s claim in relation to s 44 (i). The definition of foreign power and the precise meaning of the phrase any acknowledgement of allegiance, obedience, or adherence remained untested as they do to this day.

54. In the Directions Hearing for the case of Sykes v Cleary53, Dawson J relied on Fullager J’s judgement in Crittenden v Anderson to strike out the petitioners claims, stating Fullager J had made it clear that adherence to a particular religion, even a religion with a foreign origin or connection, carried with it no necessary acknowledgment of allegiance, obedience or adherence to a foreign power. Again, a consideration of the

52 High Court of Australia Crittenden v Anderson Reasons for judgment, Fullager J 23rd August 1950 Page 3-4 http://eresources.hcourt.gov.au/historical/showbyHandle/1/16205 53 Directions Hearing Transcript Sykes v Cleary 30th June 1992. 16

critically important meaning of s 44 (i) was precluded by one judge, relying on what I have demonstrated is Fullager J’s inadequate and flawed judgement.

55. Fullager J’s observation that every person born in Australia is a British subject is no longer correct. The High Court ruled in 199954 that the United Kingdom is a foreign power, so relying today on Fullager J’s 1950 judgement perpetrates the still unanswered question, for the purposes of interpreting s 44 (i) of the Australian Constitution, what is the definition of a ‘foreign power’.

56. The Court has determined that the United Kingdom, from whence modern Australia first emanated and whose legal and parliamentary system we have adopted, is now a foreign power, and yet the Holy See/Vatican City State – which describes itself as “a sovereign State distinct from the Holy See is universally recognized under international law”55 has not been judged by the Court to be a foreign power.

57. Fullager J’s opinion that the petitioner was wishing to revive a point of view dealt with in a British Act of 182956 enacting that any person professing the Roman Catholic religion might lawfully be a member of either House of the British Parliament was not and is not relevant today. The petitioner was essentially seeking a ruling on the definition of a foreign power within the context of s 44 (i) of the Australian Constitution. Perhaps in 1950 there may have been tendencies to defer to British law, however the Australia Act 198657 effectively terminated the ability of the British Parliament to make laws for Australia or its States even at their request and removed the right of appeal from our courts to the British Privy Council.

58. In considering this ancient British Law, Fullager J stated “that s116 was of course not enacted by men ignorant or unmindful of history”58, however it is a fact that these same men enacted s 44 (i) in such a way that it is obvious that they were concerned

54 High Court of Australia Sue v Hill 23 June 1999 http://www8.austlii.edu.au/cgi- bin/viewdoc/au/cases/cth/HCA/1999/30.html

55 http://www.vaticanstate.va/content/vaticanstate/en/stato-e-governo/note-generali/origini-e-natura.html 56 sec.2 of Act 10 Geo. IV, c.7 from Fullager J Page 4 57 http://www8.austlii.edu.au/cgi-bin/viewdb/au/legis/cth/num act/aa1986114 58 Crittenden v Anderson Fullager J Page 4 17

about the foreign power implications which cannot be ignored or over ridden by s116.

59. Fullager J’s further observation that “thousands of Catholics have fought in the armed forces of this country in recent wars”59 is an irrational and emotive reaction and irrelevant to the consideration of s 44 (i). Australian Aboriginals also fought in our armed forces and on behalf of the nation before they were even acknowledged as Australian citizens, let alone counted in the census before 1967. An Australian aboriginal who had fought in our wars since the Boer War would not have even been allowed to stand for Parliament or vote until 1967.

60. Fullager J’s statement that the petitioner’s case was “an action which seems to me to contain all the elements of vexation and oppression”60 is a misjudgement of the intent of the petition, and should not be fit grounds for staying proceedings towards/against a petitioner who seeks to uphold the Australian Constitution.

61. Fullager J held that s116 had the effect of not allowing s 44 (i) to impose a religious test as a qualification for entering parliament61. However, s 44 (i) does not impose a religious test. Its purpose is to identify a foreign power, so Fullager J’s argument is incorrect.

62. In applying s116 to quash the petitioner’s case, Fullager J did not consider the 1912 High Court case Krygger v Williams62, which held that a person could not object to compulsory military service on the ground of religious belief. The court considered that Section 116 would only protect religious observance from government interference; it would not permit a person to be excused from a legal obligation merely because the obligation conflicted with his or her religious beliefs. And, unlike

59 Crittenden v Anderson Fullager J Page 4 60 Crittenden v Anderson Fullager J Page 2 61 Dual citizenship, Foreign Allegiance and s44 (i) of the Australian Constitution. Department of Parliamentary Library 1992, Page 13. 62 Krygger v Williams [1912] HCA 65; (1912) 15 CLR 366 (15 October 1912) http://www.austlii.edu.au/cgi- bin/download.cgi/cgi-bin/download.cgi/download/au/cases/cth/HCA/1912/65.pdf

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the Fullager J decision, both the Appellant and the Respondent had the benefit of a full court hearing and representation by Kings Counsel.

63. Krygger v Williams established that legal obligations trump religious beliefs, and that a person who has an allegiance elsewhere than to the secular laws of Australia should not be able to avoid their obligation to observe the law merely by the court applying a s116 religious test argument to absolve that person of their responsibilities to civil society.

64. One of the two judges who presided in the Krygger v Williams case was Sir Edmund Barton, our first Prime Minister, principle NSW delegate to the Constitutional Convention which produced the Australian constitution, and a founding Justice of the High Court. No doubt then, Sir Edmund Barton would have had at the time intimate and recent knowledge of the intended meaning of s 116 and s 44 (i) of the Australian Constitution. Thus the Krygger v Williams judgement sets the benchmark for the interpretation of s 116, which was unfortunately ignored or overlooked by Fullager J in Crittenden v Anderson.

65. Fullager J is wrong in rejecting the petitioner’s claim that every member of the Roman Catholic Church is the subject of a foreign power. In dismissing the Petitioner’s first ground that: The said Gordon Anderson was, at the time of his nomination and election, a professed member of the Roman Catholic Church. As such he, as is the case of all members of that Church in all countries, is under ‘acknowledgment of Adherence, Obedience or Allegiance to a Foreign Power – the Papal State. He is therefore incapable of being chosen or of sitting as a Member of the House of Representatives”63

66. Fullager J stated: “There is perhaps a certain ambiguity about this passage, but the petitioner made it quite clear to me that he did not allege that the respondent had entered into any individual or particular acknowledgment of adherence, obedience or allegiance to what he describes as the Papal State. His thesis is that merely by virtue

63 Crittenden v Anderson Fullager J Page 3 19

of being a professed member of the Roman Catholic Church the respondent owes allegiance to a foreign power. What he is saying is no more and no less than that every member of that Church is the subject of a foreign power and for that reason incapable of becoming or being a member of either house of the Parliament of the Commonwealth. He concedes that if this vast major premiss cannot be sustained the first ground of his petition must fail”64. Fullager J then states “It is obvious in my opinion that no such major premiss can be supported”65.

67. Wrongly, Fullager J has determined that there must be some sort of formal acknowledgment of allegiance to a foreign power in order to be in breach of s 44 (i). Earlier and subsequent High Court decisions however do not support Fullager J’s premise. Constitutional scholars Quick and Garran66 in 1901 considered the meaning of ‘allegiance’ in relation to s 44 (i) to include “the lawful obedience which a subject is bound to render to his sovereign”, and that “allegiance is natural, acquired or local”, suggested that allegiance can be something other than a formal agreement between two entities. The recent High Court decision67 confirmed that allegiance to a foreign power can indeed be acquired even without one’s knowledge, as a right of birth, or by parental nationality perhaps even unknown to the person in question.

68. Fullager J was wrong to lead the Petitioner to concede that there must be a formal acknowledgment of adherence, obedience or allegiance to the “Papal state” and that it is not sufficient to merely be a professed member of an organisation in order to have an allegiance, obedience or adherence.

69. Fullager J was oppressive in obtaining the petitioner’s concession (without counsel assisting) that the first ground of his petition must therefore fail. The petitioner’s case was about, as per my earlier description of the governance, legal and judicial systems of the Holy See/ Vatican City State and its qualifications as a foreign power, why a person who is an observant Catholic is indeed governed by a foreign power.

64 Ibid 65 Crittenden v Anderson Fullager J Page 3 66 Quick, J., and Garran, R., The annotated constitution of the Commonwealth 1901, p. 491, in Dual citizenship, Foreign Allegiance and s44 (i) of the Australian Constitution. Department of Parliamentary Library 1992 67 http://www.hcourt.gov.au/cases/case c15-2017 20

70. I have demonstrated that the Holy See/Vatican City State meets the definition of a foreign power for the purposes of s 44 (i) so it is not proper that s116 could be used to rule that a foreign power and their subjects (those with allegiance, obedience or adherence) can be ruled able to avoid the requirements s 44 (I).

71. If s116 can be used and interpreted as it was in Crittenden v Anderson, it could have been used in relation to the recent case in the Court of Disputed Returns68 concerning whether The Hon. Barnaby Joyce MP was in breach of s 44 (i), and therefore ineligible to sit in Parliament. Mr. Joyce could have avoided having to resign from Parliament and standing for re-election if a petitioner had instead challenged his eligibility to sit in Parliament on the grounds that he has an allegiance to a foreign power because he is a Catholic, rather than that he had New Zealand citizenship. Thus Mr. Joyce’s professed adherence to Catholicism could have overridden the power of the secular state. This is surely not the intent of the constitution. If I am correct, then Fullager J should not have used s116 to dismiss the petitioner’s claims in Crittenden v Anderson.

72. As the definition of what is a foreign power and what constitutes allegiance, obedience or adherence to a Foreign Power under Sec 44 (i) has not yet been defined in the High Court, it is wrong that Fullager J 1950 should still be influencing Australian Constitutional law. There is no justification to rely on aged British law, outdated and flawed interpretations in the exercise of any Australian law, especially our Constitution.

73. Fullager J’s unpublished decision in Crittenden v Anderson 1950 was not monumental, and should not be guiding modern decisions in relation to interpretation of s 44 (i). His final reliance on s116 prevented analysis of the much broader and critical issue of the precise meaning and definitions of every word in s 44 (i). In itself, s 116 has been judged by some scholars as lightweight. In 1963 Pannam wrote that it is “regarded by all as having little practical value”69. Jennifer Clarke, Patrick Keyzer and James

68 http://www.hcourt.gov.au/cases/case c15-2017 69 "Travelling Section 116 with a U.S. Road Map". Pannam, Clifford L. (1963) Melbourne University Law Review. 21

Stellios70 argue that the court's narrow interpretation of the provision is consistent with the intention of the Constitution's drafters, who never intended for it to be a protection of individual rights. However, that is precisely how it was used in Fullager J. Indeed, I could not even find any reference to Crittenden v Anderson Fullager J in the Clarke, Keyzer & Stellios discussion of s116.

Is a religious test constitutional?

74. If it can be argued that it is unconstitutional to use a person's religion as a grounds to deny them a position under the Commonwealth (as per Crittenden v Anderson), it could be equally unconstitutional to use a person's religion as a ground to appoint them to a position. 75. A relevant case, which piqued attention, was the Australian government’s 2012 appointment of John McCarthy QC as Australia’s ambassador to the Holy See. The joint media release from the Prime Minister and the Minister for Foreign Affairs71 noted that Mr. McCarthy was a senior lawyer who had been actively involved in Church affairs and that in 2006 the Holy See had appointed him a Knight Commander of the Order of St. Gregory the Great for services to the Catholic Church in Australia and to the wider Australian community. This award is commonly known as a Papal Knighthood. 76. Mr. McCarthy’s appointment appeared to be a case of the Commonwealth favouring someone because of their religion, and by emphasising Mr McCarthy's Catholic connections; the government's media release seems to confirm this. There was no reason to refer to his Catholic credentials if the government did not consider them to be significant in their decision to appoint him. 77. It appears no-one else was considered for the position, and the appointment seemed to rely on him being a Catholic. However, s 116 of the Australian Constitution says ‘no religious test shall be required as a qualification for any office or public trust under the commonwealth’. There is no doubt that an ambassador is an 'office' under the

70 Hanks' Australian constitutional law - Materials and commentary Clarke, Keyzer & Stellios 2009, p. 1227, from Dual citizenship, Foreign Allegiance and s44 (i) of the Australian Constitution. Department of Parliamentary Library 1992. 71 https://foreignminister.gov.au/releases/Pages/2012/bc mr 120429b.aspx?w=SXqMAEY78kBkexjgKl1cQg%3D% 3D 22

Commonwealth so Mr. McCarthy’s appointment seems to contravene the intent of s 116. 78. Thus McCarthy's appointment as Ambassador to the Holy See (and others before and since) may be unconstitutional as it appears to be a case of favouring someone because of their religion, as would any other appointment to a Commonwealth position where a person’s religion was relevant to their appointment would be unconstitutional. 79. Under the Defence (Personnel) Regulations 2002 (Cth)72and as amended in 2013, appointment of chaplains to the Australian Defence Force requires that the person is a member of a church or faith group approved by the religious advisory committee to the services. In this instance, that a religious test is compulsory proves that either Fullager J’s interpretation of s 116 in Crittenden v Anderson was incorrect, or that the Commonwealth is acting unconstitutionally under s 116 of the Australian Constitution. 80. If the Commonwealth is acting constitutionally in requiring a religious test to appoint chaplains to the armed forces, then Fullager J’s rigid protection of s 116 of the Constitution in Crittenden v Anderson has been proven redundant, adding to my case that Crittenden v Anderson should no longer be relied on to interpret the Australian Constitution, in particular s 44 (i). 81. Using Crittenden v Anderson Fullager J’s reasoning that what Crittenden was contending was a religious test, prohibited by s.116, a person's religion could not be held against him to deny him a Commonwealth position. However, as put by counsel in Williams v The Commonwealth in his definition of a 'religious test':

“ .... a religious test is a concept which will include the singling out of one for favour, the singling out of one for disfavour, the singling out of more than one for favour, the singling out of more than one for disfavour and, in our submission, a way in which either of those possibilities may come about will include, classically, the qualification or disqualification of certain persons for holding an office under the Commonwealth”.

82. So, it could be argued, while it may be unconstitutional to use a person's religion as a grounds to deny them a position under the Commonwealth, it could be equally

72 https://www.legislation.gov.au/Details/F2013C00141 23

unconstitutional to use a person's religion as a ground to appoint them to a position – thus singling someone out for favour. 83. I contend that a judgement which allows s116 to override the requirements of s 44 (i) is not in Australia’s interests, and should not be relied upon to guide any future decisions in relation to what is a foreign power and what is allegiance, obedience or adherence to a foreign power. 84. In its Candidates Handbook, the Australian Electoral Commission draws particular attention to s 44 (i) and (iv)73 and in relation to the nomination form, advises that to give "false or misleading information", or to "omit any information if omitting that information would be misleading", is a criminal offence and that the "maximum penalty for this offence is imprisonment for 12 months"74. These words are clear and precise, so should be easily understood. Any parliamentarian who provides false or misleading information to the AEC- and hence the Australian people- has therefore has committed a crime, and should be dealt with accordingly. Then, if found guilty she/ he would be ineligible to sit in Parliament under s 44 (ii) of the Australian Constitution - and so that provision should remain. 85. Until the precise definition of ‘foreign power’ and the precise meaning of the words ‘any acknowledgement of allegiance, obedience or adherence’ to a foreign power in s 44 (i) of the Australian constitution has been defined by the High Court, observant Roman Catholics who express their allegiance, obedience or adherence to the Catholic Church and its Holy See/Vatican City State governance should not be appointed to Parliament.

Conclusions

86. The issue of what is a Foreign Power and what can be interpreted as allegiance, obedience or adherence to a Foreign Power clearly has implications today for important matters of state and national security. Citizenship is of great contemporary importance. A High Court definition of what constitutes a Foreign Power and acknowledgement of any allegiance obedience or adherence to it would greatly assist legislators and other responsible authorities.

73 Australian Electoral Commission Candidates Handbook ‘Disqualification under the Constitution’. http://aec.gov.au/Elections/candidates/candidates-handbook/nominations.htm#dis 74 Australian Electoral Commission Candidates Handbook Nominations: NomimnationForms http://aec.gov.au/Elections/candidates/candidates-handbook/nominations.htm#forms 24

87. Whilst a Roman Catholic MP or Senator may cite in their defence the Crittenden v Anderson decision, s 116 does not provide them with any particular protection regarding their religion. Indeed, s 116 states the Commonwealth must not legislate in respect of religion. This in turn poses further questions about instances of observant Catholic MPs and Senators consulting their Church leaders on a diverse range of matters of state.

88. It was reported in 2013 that then Gillard government Minister Bill Shorten revealed that he had consulted with his local priest as to who to vote for in the leadership contest between Ms. Gillard and Mr. Rudd for the Prime Ministership. Likewise, it was reported that in 2009 MPs Tony Abbott, Malcolm Turnbull and Joe Hockey, all being declared Catholics, consulted with Jesuit priests to determine the leadership of the Liberal Party of Australia75.

89. Thus MPs and Senators with an allegiance to Catholicism, (and who as we have established elsewhere are by definition under the governance of the Holy See/Vatican City State) may take advice from their Church leaders (whose authority is vested in a foreign power) which they can then rely on to exercise influence over all manner of policy and legislation on matters for which the Church asserts its moral and social authority e.g. the Commonwealth’s role with respect to religious schools, chaplaincy in state schools, and various Church administered organisations (e.g. hospitals, aged care, employment and counselling services) in receipt of Commonwealth funding, and other social issues where the Commonwealth may legislate such as dying with dignity, family planning etc.

90. There remains a need for a present day interpretation of the precise meaning of each and every word in s 44 (i).

75 Sydney Morning Herald 19th April 2014 http://www.smh.com.au/federal-politics/gospel-truth-catholics-come- to-power-20140419-36y46.html 25

91. The foreign power Holy See/Vatican City State connection with several MPs is a more direct and significant link with a foreign power than some of the other persons recently considered by the High Court to be in breach of s 44 (i)

92. Australians should not expect or accept any religion to have priority over our secular laws. I concur with the observations of The Hon AC CMG and former Justice of the High Court who has said “The principle of secularism is one of the greatest developments in human rights in the world. We must safeguard and protect it, for it can come under threat in contemporary Australia.”76 The most effective way to achieve that is to ensure that inappropriate reliance on s 116 of our constitution can never be used to override the secular interest. No laws made by parliaments nor decisions of executive government should privilege or promote any religion.

93. Religious institutions should not be permitted to exempt themselves from the law of the land and Canon Law must not take precedence over Australian law. Canon Law presently occupies a privileged and protected position in Australian society. This makes Australia vulnerable to challenges from other religions to impose their religious law on our secular law. This can only be resisted if the Australian government renounces any formal connections with the Holy See/Vatican City State.

94. The only amendment needed for the Australian Constitution is for it to enshrine a separation of Church and state.

The real test of a democracy is the eligibility of those who are elected to represent us.

I would be pleased for this submission to be made public.

Len Warfe

76 The Hon, Michael Kirby AC CMG, In Praise of Secular Education, December 2009 26