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Inquiry Into Matters Relating to Section 44 of the Constitution

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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: Australian Government 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 Australia 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 High Court of Australia 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; law 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 Holy See/Vatican City 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 Catholic 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 Roman Curia (Latin for Roman Court), similar to a centralised government with the Cardinal Secretary of State as its Chief Administrator, and various ‘dicasteries’ (comparable to Ministries and executive departments)12. 12. The US Department of State advises that the Holy See is the universal government of the Catholic Church and operates from Vatican City State, a sovereign, independent territory. The Pope 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 patriarch 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 sovereignty over the state of Vatican City. Diplomatically, the Holy See acts and speaks for the whole church, and is recognised by other subjects of international law 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.
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