Section 44 of the Australian Constitution is again randomly assassinating a number of federal politicians. But there is no indication whatever that it is operating other than the Australian people intended in 1900 and that it needs or should get amendment at a referendum. Like another current bipartisan constitutional "reform" proposition – that we should have four-year elections – a referendum would have no chance of success, and those focused on the idea should be prosecuted for wasting valuable public time.
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Whenever a politician falls foul of Section 44, there are those who argue that it was badly drafted, gives perverse results, or that it is some sort of constitutional anomaly now out of date. While it sometimes seems to strike at random, catching victims unaware, there are good arguments for each of its general principles. One would be better arguing that politicians, particularly those born overseas, should be more careful, than that the section should be redrafted or repealed.
I predict that even a unanimous parliamentary vote for substantial amendment (and it would not get that) would fail to move voters, and that any amendment would be decisively rejected at referendum. That is primarily because the section provides the public with some protection from the excesses of politicians.
Some have sympathy for the problems of Senator Matt Canavan, whose position will be considered by the High Court, and two Green senators, Larissa Waters and Scott Ludlam, whose unwitting dual citizenships has already caused them to resign. It seems plain that Canavan must be regarded as a dual citizen, but he claims that if he is, it is only because of something his mother did without his knowledge when he was 25.
It is not yet clear that the position of all other federal parliamentarians is safe. So far, the sleuths and mischief makers have been mostly focused on the foreign born, or the obvious children of migrants. But the net could well go wider. In some nations citizenship is an almost automatic incident of some status, rather than the result of any exercise of will. Existing High Court judgments indicate that there must be positive efforts to renounce citizenship of other countries – and that ignorance of one's status is no excuse.
Generally speaking, most dual citizens gain from their extra allegiances. It gives access to foreign passports, and what exemption from visa and border controls that can bring. This is particularly the case with passports of nations in the European community, but a right to some other passports, such as a US one, can allow one to jump Donald Trump's wall, and allow one to work without any need for a green card.
Forty years ago, young men had a practical reason for renouncing dual citizenship. Sons of European parents found themselves conscripted for military service if they visited the homeland of either of their parents. This happened even when children (sometimes even parents) were Australian-born and naturalised, and even where they had said and done nothing asserting any other citizenship. Even active renunciation was often not enough to prevent conscription. This is why the High Court has set, for would-be politicians, a requirement of best efforts at renunciation, not necessarily successful renunciation.
Fewer nations conscript these days.
Tony Abbott is said, by the British High Commission, to have positively renounced his British citizenship in 1993. I expect he has done enough, though my guess is that his children (and his wife) could even now obtain British passports on the basis of the facts of Abbott's birth and parentage, even if they are not at this moment British citizens.
Rupert Murdoch effectively renounced his Australian citizenship when he became, for business reasons, an American citizen. In those days, the US would not allow dual citizenship; nowadays it does. If Murdoch chose to resume his Australian citizenship without dropping his American citizenship, he might have an argument that he is no longer subject to Australia's (fairly weak) laws restricting foreign media ownership. Though he remains fond of boons, special favours and grovelling obsequiousness from Australian politicians on both sides of the fence, I expect that he accepts that resumption of citizenship would not be popular here, given his abandonment of heaven on earth.
The modern-day equivalent of 1960s conscription of Australians by countries such as Italy, Greece, Spain, Yugoslavia and Israel is the fact that some countries such as China treat people they regard as citizens as locals when they are in their original homeland even after we have come to consider them as Australians. This can persist past renunciation. China concedes our officials some limited consular rights. A claim of continuing reach of law and duty, even after renunciation, is a potential threat to any traveller having dual citizenship, even when unaware of the fact.
The nature and reach of Australian citizenship has several times changed since federation, when most non-Aboriginal Australians were mere British subjects. Section 34 of the Constitution said that until Parliament otherwise provided, a federal politician "must be a subject of the Queen, either natural-born or for at least five years naturalised under a law of the United Kingdom, or of a colony which has become or becomes a state, or of the Commonwealth or of a state."
This "must be" provision is match by the "must not be" words of Section 44. Its first part says that any person who "is under any acknowledgment of allegiance, obedience or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or citizen of a foreign power" is incapable of being chosen or sitting as a member of the federal parliament." Whether one fits in such categories is a matter of fact, not of intention, and, it is clear, ignorance of one's status is not a defence.
We are all, by and large, relaxed about our citizens having dual citizenship of other countries. At least while we are at peace. But any nation has a right to insist, in wartime anyway, that any of our citizens gives us their full-blooded loyalty and allegiance, not to another nation of which they are simultaneously a citizen.
Nor is it safe to assume that a citizen's obligations to Australia depend on domicile of the moment. A Greek Australian on holiday in Greece, or a dual Australian and Israeli in Israel is not excused their duties to Australia while there. Preferring one's rights and duties to another country, even an ally or a neutral, can lead only to trouble, particularly but not only when the defence and foreign affairs interests of the two countries are in conflict. .
At least since Sir Roger Casement was executed for treason in Britain a century ago, it has been clear that adhering to one's country's enemies while abroad is as much treason as doing so at home. (An alternative interpretation of the centuries-old statutes was rejected by the courts, leading some to say that Sir Roger, an Irish patriot, had been "hanged by a comma".)
Many of us are, rightly, deeply suspicious and worried about whether our rights and duties as citizens are to be enumerated, interpreted and enforced by people such as Peter Dutton, Mike Pezzullo or Roman Quaedvlieg. Our constitution, including s44, provides some protection from their potential excesses. I doubt that all the skills and powers of this trio could persuade Australians that we needed weaker constitutional protections. People even further on the political fringe would have a field day if anyone tried.
Section 44 also excludes those convicted or under sentence of a crime potentially punishable by a sentence of more than a year (the provision that took out Rod Culleton as a One Nation senator for Western Australia); or those who are bankrupt or insolvent (which also affected Culleton, and threatened the career of Senator Robert Day, the Family First senator for South Australia); holding an office of profit under the crown, or a Commonwealth pension (which was a problem for Phil Cleary, elected to the House of Representatives while he was still a teacher); and having a direct or indirect pecuniary interest in a government contract (another, fatal problem for Bob Day, and now a problem for a Turnbull Minister, David Gillespie, whose case, like Canavan's, is bound for the High Court. Gillespie owns a shopping centre, in which one of the buildings is leased to the post office.
I don't think any politician could find a popular constituency for weakening the government contract provision. It reflects an anti-corruption attitude that developed with blatant jobbery, bribery and chicanery by 19th century politicians. Like the provision about office of profit under the crown, it also represents an attempt to prevent ministers from influencing politicians with offers of jobs, pensions and juicy perks. If not a spectacularly successful attempt.
If some politicians deserve sympathy, but not much support, for their constitutional difficulties, there are those who think that changing the constitution to have fewer elections might be more popular. I doubt it. Australians might not much like being too often in electoral mode, if only because they see enough of politicians. Likewise, there are insider observers who claim that short terms make politicians nervous about doing unpopular things. I doubt myself that longer terms infuses timorous politicians with extra courage or boldness, and, in any event, rejoice in the opportunity to throw the bastards out as frequently as possible. With the US House of Representatives, one gets this chance every two years.
There has never been any great difficulty in getting politicians to agree, at least for a time, that the terms of politicians (in the Reps anyway) should be extended. In various states and territories, politicians, if not the people, have voted themselves extended terms. .
But even Australians who are said to hate going too often to the polls can recognise a rort when they see it. On the last occasion, 30 years ago, when a four-year term proposition was put to the people at referendum, voters rejected the proposition two to one, and the proposition did not have majority support in a single state: 6.3 million Australians said no; 3.1 million yes.
The leader of the Opposition, Bill Shorten, is the latest champion of four-year terms, and Malcolm Turnbull is happy enough to go along now that it has been raised by the other side. But it is to be doubted that their joint advocacy will be any more successful than the advocacy of Bob Hawke, and the initial, later withdrawn, support of John Howard and the Liberals.
The Liberals were to renege on initial support when Peter Reith convinced Howard that there should be a populist campaign against all four propositions in the 1988 referendums. Reith wanted simplistic slogans warning of the accretion of power in Canberra, and the risks of an over-powerful state. (I expect Reith would have had a field day if a sinister and authoritarian Home Affairs Department went to popular referendum.)
While many Liberals tended to support two of the four referendum propositions on offer (four-year terms and mention of local government in the constitution, Reith argued that it would be tactically better to oppose all four propositions. The other two wanted to enshrine one-vote one-value, and prevent gerrymanders; another created a very limited set of Bill of Rights-style personal freedoms.
All four failed miserably, no proposition achieving majority support in any state, and only one (for fair elections) even in the ACT. Fair elections did best, with 38 per cent support; the rights and freedoms proposition was the least supported, with only 31 per cent in favour.
That has not stopped "reformers" trying to keep some of these propositions on the agenda for future referendums. But little to suggest any upsurge in popular enthusiasm. It is true that public opinion polls sometimes suggest that majority public opinion supports all of these propositions, and feel-good and essentially meaningless constitutional recognition of prior occupation of Australia by Aborigines.
But experience shows conservatism about almost any constitutional change when voters are actually in the ballot box. And it also suggests that any proposition which has any substantial opposition – sometimes irrational or merely opportunist opposition – will fail, especially if it can be said that it will increase governmental powers.
The effect of four-year terms would reduce the term of senators to four years instead of six, and make every general election a double dissolution. Some independent and minor party folk might like this, given that would halve the quota of an ordinary half-senate election. It might increase the number of independents. But not necessarily the ones we have had in the parliament before.
It is all so unlikely that the cynical must wonder why, in the terms of the biblical Book of Proverbs, the dogs keep returning to their vomit, and the fools to their folly. Surely there are better things to do?
Jack Waterford is a former editor of The Canberra Times
