It could have all been so much easier…
Whatever the deal done by the Coalition and Labor, there always was a simple constitutional solution to the dual nationality issue. Instead, the politicians and the judges have swept the nation into a totally unnecessary crisis that has paralysed Parliament and made the government look ridiculous. This mess could have been easily avoided. It still can be, at least for those who’ve not yet fallen.
The original mistake was to accept uncritically the fiction that the High Court is infallible, at least until it changes its mind. This concept comes from a judicial coup by the US Supreme Court which has famously ruled that slavery is constitutionally protected, that even a free black person can never be a citizen and that it is entirely proper to intern American citizens merely because they have Japanese blood. Our own High Court has handed down decisions which have resulted in a myriad of crises — the forced substitution of a federal GST for state taxes declared invalid, the crisis in educational standards, the same-sex marriage survey, the failure to harvest water and electoral fraud. By extending this fiction to parliament’s own creation, the High Court sitting as the Court of Disputed Returns, the present crisis has been made far worse.
The point is that neither House of Parliament was under any obligation to refer cases concerning the qualifications of senators or representatives to the court. It was unwise to do so, because the politicians affected not only put their heads on the chopping block, the court handed down decisions which would then be claimed to be precedents potentially affecting others unknown, with the result that the good governance of the nation was handed over to seven men and women in black robes. (Just on that, when the court abandoned the traditional wig and gown for American style robes, was it already infected with an activist virus?)
The result is that the court has adopted an interpretation of the constitution which, as Morgan Begg has demonstrated in this journal, goes against the original intention of those who wrote the Constitution and of the Australian people who approved it. (That’s why the Turnbull government should have appointed originalists to fill the two recent vacancies, as President Trump did.) Coming from Le Palais de Justice on the shores of Lake Burley Griffin, this interpretation lacks fundamental common sense, despite parliament’s unambiguous legislative direction that the CDR be guided by the ‘substantial merits’ and ‘good conscience’ of each case, without regard to ‘legal forms or technicalities’, in brief, with common sense. Just talk to ordinary Australians; almost universally, they are astounded that anybody could, without doing something and without their knowledge, become the citizen of another country. They ask how can some obscure and unknown foreign law apply to Australian citizens without their knowledge or agreement? They are amazed and appalled that our close Anzac partner New Zealand, the mother country Britain and our sister dominion Canada are somehow deemed to be foreign countries. What, they ask, has this to do with our independence? After all, when we become adults, our parents, brothers and sisters do not thereby become strangers. All this is the consequence of vesting infallibility in seven men and women in black robes, who like oracles of old, take to staring into the penumbrae, as the American judges put it, the shadows within the Constitution, seeing things there which mere mortals cannot see.
It’s not too late for those who are left in each House to resolve that the President and Speaker, after consultation with all party leaders, appoint a QC or other eminent lawyer as Special Parliamentary Counsel to advise Parliament on the qualifications under s.44(i) of all senators and representatives. The resolution would contain a binding ruling, following the opinion of Sir William Deane, that an Australian citizen can only acquire a foreign citizenship where he or she has ‘sought, accepted, asserted or acquiesced’ in obtaining that citizenship. It would provide any such citizenship could be terminated by reasonable efforts to renounce it. There would be an overall proviso that the citizenship of any Commonwealth realm shall not be deemed to be foreign. The resolution would also require that all senators or representatives provide a statutory declaration and any relevant evidence on their qualifications to the Special Counsel within 7 days. Such a solution is envisaged in s.46 of the constitution which provides that any question respecting the qualifications of a senator or representative be determined in the House in which the question arises. The section opens with the words ‘Until the parliament otherwise provides’. But Parliament has only partially provided otherwise; s.376 of the Commonwealth Electoral Act merely saying the House ‘may’ refer the question to the CDR. Accordingly, each House has a residual power under the Constitution to determine the question of qualifications, as recognised by Justices Kirby, McHugh & Callinan in the 1999 case, Sue v. Hill.
Each motion could look to the longer term and the reform of the constitution on this and other matters such as indigenous recognition, taxation, state and federal powers, the formation of new states, electoral fraud, accountability and governance and the suggestion, by constitutionalist Nick Hobson, that the High Court’s major constitutional interpretations be regularly submitted to the people for approval.
As Edmund Burke observed, ‘A state without the means of some change is without the means of its own conservation.’
Our constitution unusually contains within it a procedure for change through a referendum. The way federation was achieved through the Corowa plan indicates that the best way to achieve reform would lie in a convention, along the lines of the 1998 Howard model running for, say, five years. Following Corowa, and agreement among the parties, the convention’s recommendations should be referred to the people in a series of referendums to take place at the time of each general election. The motions could give notice of an intention to call such a convention.