Our Federal Constitution

 
  allan Chief Commissioner

October 9, 1942 was the day Australia became independent of Great Britain, when the Statute of Westminster Adoption Act 1942 received Royal assent. Until then, Austalian foreign policy had been that of Westminster, the British Parliament.

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  Bogong Chief Commissioner

Location: Essendon Aerodrome circa 1980
October 9, 1942 was the day Australia became independent of Great Britain...
allan
Well, that's pushing it, especially as a term like "independence" doesn't really apply to Australia as it all happened gradually by very small increments over 150 years. Three of the more notable ones were:

  • 1850s. All colonies (except underdeveloped W.A.) were granted responsible government. That basically meant that the UK walked away from their responsibilities in that administration. Every colony then had to govern itself according to its own laws, fund itself and defend itself (although there was an implicit attitude that the UK would help in most circumstances). Initially special UK legislation could be passed to overrule colonial laws. Later Victoria pi55ed off the UK by allowing a Confederate warship to dock and refit, but by the mid 1860s the UK no longer had the power to order Victoria to chuck the Confederates out. Canadian colonies were also granted responsible government at the same time and they quickly federated, but Melbourne and Sydney rivalry was too fierce to allow this to be considered for another third of a century.
  • Federation was called that because the colonies (soon to be states) federated and gave up specified powers to a new Commonwealth government. The UK parliament had to ratify this, but they had very few powers over Australia to give up, so the new government of the Commonwealth of Australia had powers that were overwhelmingly just transferred from the states.
  • Statute of Westminster, passed in UK in 1931 and codified policies already in place. Thus it was sort of partly adopted in Australia by acknowledgement, but no political party felt any need to formally adopt it until the Second World War, when it became important to have a federal government mission to the U.S. as opposed to just relying on representatives of Australian states and the UK who were based in America.
There were about a dozen other increments towards full government of Australia by Australians starting in the 1820s. Probably the last was the abolition of appeals from the High Court of Australia to the Privy Council in the 1970s.

But if anyone is silly enough to talk about an Australian independence date, they are just displaying an ignorance of the issue. The thing sort of gradually evolved in many increments over 150 years.
  Brianr Deputy Commissioner

Location: Dunedin, New Zealand
I have dual Australian/NZ citizenship. It would cost $205 to revoke my Australian citizenship so why bother. I rushed into becoming a Kiwi because I needed a new passport and to renew my Australian passport I would have to fly to either Wellington or Auckland for an interview then pay Au$103 to have it sent to me in NZ. The NZ passport (NZ$180) can be renewed online although the first one has to be done my mail. I did then renew my Australian passport (Au$277) by applying in Sydney during a stopover on my way to Europe, having it sent to my Sister's address and picking it up on my way back. I rarely visit Australia for more than a week at a time. I only use the Australian passport to enter and leave Australia although I have joked I might use it in Denmark. That is the only place where the customs official gave me a smile and said "Ah Princess Mary" I have been surprised at the smile I receive with my NZ passport even in the USA.
  YM-Mundrabilla Minister for Railways

Location: Mundrabilla but I'd rather be in Narvik
October 9, 1942 was the day Australia became independent of Great Britain...
Well, that's pushing it, especially as a term like "independence" doesn't really apply to Australia as it all happened gradually by very small increments over 150 years. Three of the more notable ones were:

  • 1850s. All colonies (except underdeveloped W.A.) were granted responsible government. That basically meant that the UK walked away from their responsibilities in that administration. Every colony then had to govern itself according to its own laws, fund itself and defend itself (although there was an implicit attitude that the UK would help in most circumstances). Initially special UK legislation could be passed to overrule colonial laws. Later Victoria pi55ed off the UK by allowing a Confederate warship to dock and refit, but by the mid 1860s the UK no longer had the power to order Victoria to chuck the Confederates out. Canadian colonies were also granted responsible government at the same time and they quickly federated, but Melbourne and Sydney rivalry was too fierce to allow this to be considered for another third of a century.
  • Federation was called that because the colonies (soon to be states) federated and gave up specified powers to a new Commonwealth government. The UK parliament had to ratify this, but they had very few powers over Australia to give up, so the new government of the Commonwealth of Australia had powers that were overwhelmingly just transferred from the states.
  • Statute of Westminster, passed in UK in 1931 and codified policies already in place. Thus it was sort of partly adopted in Australia by acknowledgement, but no political party felt any need to formally adopt it until the Second World War, when it became important to have a federal government mission to the U.S. as opposed to just relying on representatives of Australian states and the UK who were based in America.
There were about a dozen other increments towards full government of Australia by Australians starting in the 1820s. Probably the last was the abolition of appeals from the High Court of Australia to the Privy Council in the 1970s.

But if anyone is silly enough to talk about an Australian independence date, they are just displaying an ignorance of the issue. The thing sort of gradually evolved in many increments over 150 years.
Bogong
Thanks Bogong.
Sums it up nicely.
I was not aware of the US mission aspect but in addition to this there was the case of a murder on board HMAS Australia during WW 2 where the alleged culprit(s) were to be hanged under Royal Navy law under which the RAN still operated at the time. It was this case which also hastened the Australian Government to formally ratify the Statute of Westminster and thereby save these men's lives.
  Bogong Chief Commissioner

Location: Essendon Aerodrome circa 1980
Thanks YM-M. Sometimes I wonder if my digressions like that one are read by people or I'm just rambling to myself.

My point is that the Australian colonies became effectively independent in the 1850s (they were granted 'responsible government' a few years apart, starting with NSW and Vic in 1855).

So even though the gradual process took about 150 years, if someone wants to nominate a particular time when Australia became independent, then 1942 is about 85 years too late.
  Aaron The Ghost of George Stephenson

Location: University of Adelaide SA
Leave the bloody thing alone.
If the politicians had followed the law Turnbull would not have to be making excuses now.
Section 44 has been acknowledged by the High Court as being written too broadly, Nash, Joyce and Xenophon will be found to be lawfully elected, because the High Court has stated in the past that merely having a foreign country bestow citizenship on an Australian is not sufficient to have them be ineligible for Parliament.

Canavan is a tricky one, he had citizenship bestowed not by his own doing or request, I have a feeling the High Court will rule him valid, Waters and Ludlam had to go, they were born overseas, and as such should have known and understood that birthright is the international default for citizenship. Waters saying she left young and has never been back does not wash.
The HC might say s44 is too broad but at the end of the day they may not find in favor Joyce etc if they take a black letter approach. This court is not known for legal adventurism.
nswtrains
The High Court needs no desire for adventurism to rule Joyce, Canavan, Nash and Xenophon valid. The very first paragraph in my post quoted by you states that the High Court has previously noted Section 44 as being too broadly written for a 'black and white' reading. It has previously stated that the position of these four are in is unlikely to be determined invalid.

This is not a new topic, merely a currently popular one, that 'pub lawyers', media and opposite side politicians are having a bit of fun talking about...
  Aaron The Ghost of George Stephenson

Location: University of Adelaide SA
October 9, 1942 was the day Australia became independent of Great Britain, when the Statute of Westminster Adoption Act 1942 received Royal assent. Until then, Austalian foreign policy had been that of Westminster, the British Parliament.
allan
I think that's maybe a bit untrue.

Oh, I see others have picked it up too.
  allan Chief Commissioner

My understanding is that a "sovereign" state is able to conduct its own foreign affairs.

Appeals to the Privy Council, and the Monarchy as head of state do not allow the British Parliament to influence the Australian Government.

The path to independence began with Responsible Government, but was completed in 1942.

Well, that's how I see it!

It's a bit of a distraction, anyway. The real subject is Bringing the Australian Constitution into the 21st century...
  MILW Junior Train Controller

Location: Earth
Until 1930, 30 years after Federation and the constitution being signed, the UK was still appointing the GG, was this forecast when the constitution was written?
RTT_Rules
Maybe the "founding fathers" thought the process would gradually evolve, but the Commonwealth of Australia was originally a British colony, not an independent state, and there was no Australian citizenship until about 1948, so the whole idea of allegiance to a foreign power was not as it is today. We were literally British. Being born in the UK and retaining British citizenship was never an issue, and I assume it would not have been an issue until well after Australian citizenship became a thing.


In dealing with the matter at hand I think there should be leniency. The position on dual citizenship moving forward could be decided and resolved without the need to kick people out of parliament. We know the various parties have their own agenda related to the numbers and how it could affect their power, but it's really just a waste of time and resources. They should decide their position, let those who need to renounce foreign nationality do so, then lay the matter to rest and get on with governing.
  RTT_Rules Oliver Bullied, CME

Location: Dubai UAE
Until 1930, 30 years after Federation and the constitution being signed, the UK was still appointing the GG, was this forecast when the constitution was written?
Maybe the "founding fathers" thought the process would gradually evolve, but the Commonwealth of Australia was originally a British colony, not an independent state, and there was no Australian citizenship until about 1948, so the whole idea of allegiance to a foreign power was not as it is today. We were literally British. Being born in the UK and retaining British citizenship was never an issue, and I assume it would not have been an issue until well after Australian citizenship became a thing.


In dealing with the matter at hand I think there should be leniency. The position on dual citizenship moving forward could be decided and resolved without the need to kick people out of parliament. We know the various parties have their own agenda related to the numbers and how it could affect their power, but it's really just a waste of time and resources. They should decide their position, let those who need to renounce foreign nationality do so, then lay the matter to rest and get on with governing.
MILW
Agree, and hence why if nothing else Section 44 will not apply to those whose citizenship of another country is purely from that country claiming that person has citizenship through birthright, not from the individual applying or exercising any use of that citizenship.

I'm not sure what Australia does in return. I know of kids born to at least one Aussie parent (father), the mother a non Australian in the UAE. They had to prove the child was from the father also noting the UAE like Australia does not grant citizenship for people born in their country to non Nationals, so this requirement makes sense that the direct off-spring need to be a citizen of their parents.

In other easier countries, the child is only an Australian if at least one parent was an Australian at time of birth and hence that link is more easily broken than other countries claim to Australians which will allow 2 generations, ie grandparents.
  allan Chief Commissioner

Section 44 reads
" Any person who:
                     (i)  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 a citizen of a foreign power; or

                    (ii)  is attainted of treason, or has been convicted and is under sentence, or subject to be sentenced, for any offence punishable under the law of the Commonwealth or of a State by imprisonment for one year or longer; or

                   (iii)  is an undischarged bankrupt or insolvent; or

                   (iv)  holds any office of profit under the Crown, or any pension payable during the pleasure of the Crown out of any of the revenues of the Commonwealth; or

                    (v)  has any direct or indirect pecuniary interest in any agreement with the Public Service of the Commonwealth otherwise than as a member and in common with the other members of an incorporated company consisting of more than twenty‑five persons;

shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives."

It is both explicit and unambiguous... The wording can be changed, but only by referendum.

There is not a lot of room for interpretation.
  RTT_Rules Oliver Bullied, CME

Location: Dubai UAE
Section 44 reads
" Any person who:
                     (i)  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 a citizen of a foreign power; or

                    (ii)  is attainted of treason, or has been convicted and is under sentence, or subject to be sentenced, for any offence punishable under the law of the Commonwealth or of a State by imprisonment for one year or longer; or

                   (iii)  is an undischarged bankrupt or insolvent; or

                   (iv)  holds any office of profit under the Crown, or any pension payable during the pleasure of the Crown out of any of the revenues of the Commonwealth; or

                    (v)  has any direct or indirect pecuniary interest in any agreement with the Public Service of the Commonwealth otherwise than as a member and in common with the other members of an incorporated company consisting of more than twenty‑five persons;

shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives."

It is both explicit and unambiguous... The wording can be changed, but only by referendum.

There is not a lot of room for interpretation.
allan
When reviewing judgement against the constitution, my understanding is the high court ruling is based on how they believe the statement was intended to imply at the time of writing.

For me I stand by the position that citizenship claimed by other nations apon Australian citizens but not used or benefited from and certainly if not traveled to the country as an adult or obtained a passport is not against the spirit and/or the intent of section 44.

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 a citizen of a foreign power; or

Because
- you have no proclaimed allegiance and allegiance by birth when born in Australia is highly questionable,
- you have not done anything to support that foreign power
- you have not adhered to any request or order by the foreign power
- you have not claimed any rights or privileges of that foreign power
- overall you do not demonstrate that you have any preference or bias to that foreign power to Australian law and culture.

The only part is of a subject or a citizen of a foreign power. But again this is questionable. To say someone is compromised because of their grandfathers heritage, seriously? We are starting to draw parallels here with the Korean and common in Asia in general 3rd generation rule and that is a fault done by use is punishable not just to you but the next two generations and this includes such things as jail (or concentration camps).

Australia's strength is that we don't care where you are from or who your parents were or what your name is, you taken at face value for what you did/do or can do, your religion, where you studied or went to school or your heritage. This is why Australian passports unlike many others do not have the names of your husband or father on your passport or indeed grandfather in some cases. We do not have family books as legal claim to citizenship.  

Even Aboringinality is given by birth it usually needs to be demonstrated.
  Bogong Chief Commissioner

Location: Essendon Aerodrome circa 1980
When reviewing judgement against the constitution, my understanding is the high court ruling is based on how they believe the statement was intended to imply at the time of writing. ...
RTT_Rules
If that was the case, people who were (possibly) able to claim citizenship of Canada, UK and NZ would not have been chucked out of the senate because, when the constitution was written in the 1890s, these places were not "foreign". At the time they were all just different self governing parts of the Empire and not at all foreign.

So perhaps the High Court has been a little "adventurist" by reinterpreting the constitution by using those words in a modern context?

There are plenty of examples of the High Court interpreting the constitution in a way that was not intended by those who wrote it.

One instance is the Tasmanian Dams Case. The states ceded the power to the new Commonwealth government to make foreign treaties. But because the Commonwealth had signed the UNESCO treaty to preserve designated World Heritage areas, they successfully ran a case to stop the Tasmanian Government building dams in a World Heritage area. I doubt the Tas Govt would have endorsed that section of the draft constitution in the 1890s if they thought the Commonwealths foreign treaties powers might be used to stop them building (what they viewed as) vital state infrastructure.

Mabo (and its extension through Wik)  are other High Court constitutional cases that the original signatories to the constitution would not have foreseen or endorsed.

There are many other cases of "legal adventurism" by the High Court in interpreting the constitution that would not have been intended or approved of in the 1890s. So the High Court has a strong and regular history of  activist interpretation of the constitution and creating case law that would have been seen as both radical and against the intentions of the authors at the time of writing.
  Graham4405 The Ghost of George Stephenson

Location: Dalby Qld
There are many other cases of "legal adventurism" by the High Court in interpreting the constitution that would not have been intended or approved of in the 1890s. So the High Court has a strong and regular history of  activist interpretation of the constitution and creating case law that would have been seen as both radical and against the intentions of the authors at the time of writing.
Bogong

In the absence of an updated constitution what other course of action is available?
  allan Chief Commissioner

Revolt! And that is an unlikely event.
  rxclass Junior Train Controller

Location: On the manual turntable at Marino turning an exquisite Rx class steam locomotive.
Revolt! And that is an unlikely event.
allan
G'day all,

Give me 1 good reason why any of us citizens of this great country should go into bat in any form for Australian politicians.

Regards,
  YM-Mundrabilla Minister for Railways

Location: Mundrabilla but I'd rather be in Narvik
Perhaps rxclass should have said:

'Give me 1 good reason why any of us citizens of this ONCE great country should go into bat in any form for Australian politicians.'
  djf01 Chief Commissioner

this one
Section 44 reads
" Any person who:
                     (i)  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 a citizen of a foreign power; or

It is both explicit and unambiguous... The wording can be changed, but only by referendum.

There is not a lot of room for interpretation.

For me I stand by the position that citizenship claimed by other nations apon Australian citizens but not used or benefited from and certainly if not traveled to the country as an adult or obtained a passport is not against the spirit and/or the intent of section 44.

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 a citizen of a foreign power; or

Because
- you have no proclaimed allegiance and allegiance by birth when born in Australia is highly questionable,
- you have not done anything to support that foreign power
- you have not adhered to any request or order by the foreign power
- you have not claimed any rights or privileges of that foreign power
- overall you do not demonstrate that you have any preference or bias to that foreign power to Australian law and culture.

The only part is of a subject or a citizen of a foreign power. But again this is questionable.
...
RTT_Rules

Antony Green gave a good summary of the issues and the case law in his latest blog entry on the subject
(http://blogs.abc.net.au/antonygreen/2017/07/section-44i-strikes-again-senator-canavan-.html)

Apparently (I'm not interested enough to read it all) the relevant case is this one.


The Sykes v Cleary judgement also examined the citizenship status of Cleary’s election opponents. The Liberal candidate was born in Switzerland, was a naturalised Australian citizen, but still had Swiss citizenship. The Labor candidate was Greek born and caught in the same trap, a naturalised Australian but still possessing Greek citizenship.

The majority of the High Court ruled that both were disqualified as they had not attempted to rid themselves of their foreign citizenship.

The Court acknowledged that in some cases Australian citizens cannot rid themselves of foreign citizenship.

Rather than let foreign law define whether an Australian citizen can run for Parliament, the High Court adopted a test in Australian law that a candidate must make “all reasonable steps” to rid themselves of other allegiances.
"Antony Green"
  allan Chief Commissioner

Antony Green gave a good summary of the issues and the case law in his latest blog entry on the subject
(http://blogs.abc.net.au/antonygreen/2017/07/section-44i-strikes-again-senator-canavan-.html)

Apparently (I'm not interested enough to read it all) the relevant case is this one.
djf01
That is a good summary, and it is worth reading it all. There is a lot of uncertainty in this issue, and it will not be resolved quickly.
  allan Chief Commissioner

It looks like the learned judges read the constitution and took it at face value...
  justapassenger Minister for Railways

Six of the seven decisions were 100% as expected, the only remotely interesting thing I find from the decision itself is that Canavan was cleared. This means the High Court has just validated pulling a Warnie!

The interesting bit will be what happens next with regards to the five who have been disqualified. Recovering all their deceptively obtained pay for those months/years might be difficult, but it shouldn't be a problem to recover all their parliamentary superannuation (and the interest it earned) since the whole point of super is that it is held for future use rather than directly paid.
  Radioman Chief Train Controller

Hello All,

with respect, there seems to be a misunderstanding as to what the problem is .

Until 1949 as an Australian unless you were an aborigine, you were classes as a British Subject Resident in Australia , and if you applied for a Passport you received a British Passport emblazoned with the word AUSTRALIA on it.

Effectively any British Subject, having been resident for a qualifying period, was eligible to vote, and therefore be elected to the Commonwealth Parliament. This also generally applied throughout the Britsh Empire and Commonwealth, hence why an Australian , New Zealander, Canadian, South African etc could stand , and were, elected to the House of Commons in London. ( Beevorbrook was Canadian )

With the post war dissolution of Empire , many countries introduced Citizenship Acts, which were, and are, mirrored in Acts of the British Parliament. In our case this occurred in 1949. However, even though now a citizen of another country , you still retained all the privileges of being a British Subject, unless your country specifically said otherwise, which Burma did.

Fast forward post 1983 and the House of Commons abolished British Subject and replaced it with British Overseas Territory Subject, which is far more restrictive. Changes to Australia's Citizenship Act after this period has also created problems by new definitions and redefined relationships.This process has also happened in other Commonwealth countries. So who was eligible in 1946, 1956, 1966, 1976 may not be eligible after 1984, hence the current problem.

It is not the fault of the Constitution, but a result of some probably unintended consequences of Citizenship Act Amendments.

As a tangent to this, before 1984 an Australian parent for citizenship of a child could only be the father. An Australian mum was not the basis for a child to be an Australian citizen ( a distinct legal lack of knowledge of biology at work here ) . Subsequently a person rendered stateless whilst on Australian soil is entitled to permanent residency. This reform was to prevent a stateless person being without support.

In the instance of British, Australian and other citizenship, Wikipedia actually gives a very good summary with references to follow up. This is an interesting and complex issue for a range of reasons.

Finally, anyone standing for public office anywhere SHOULD READ THE NOMINATION FORM AND COMPLY, this should not be that difficult, though as Sam Dastyari found out it could be expensive !

Best wishes and regards, Radioman
  RTT_Rules Oliver Bullied, CME

Location: Dubai UAE
It looks like the learned judges read the constitution and took it at face value...
allan
Which is a bit unusual as usually its interpreted in the spirit for which they believe it was written for at the time.

Going on face value to me is the High Court taking the easy road and potentially deliberately raising a Red Flag for the govt to act and fix the issue.
  justapassenger Minister for Railways

It looks like the learned judges read the constitution and took it at face value...
allan
Which is a bit unusual as usually its interpreted in the spirit for which they believe it was written for at the time.

Going on face value to me is the High Court taking the easy road and potentially deliberately raising a Red Flag for the govt to act and fix the issue.
RTT_Rules
I reject the suggestion that the High Court simply took it at face value.

If you read the reasoned decision as I now have, you'll see that the High Court went to great effort to determine the intentions of the writers, even going into the structure of the text and the various drafts that led to it in the 1890s. They also considered the interpretations made by the Court in Sykes v Cleary and Sue v Hill during the 1990s, since the Court was not sailing into uncharted waters this time around and had the duty to maintain consistency.

By word count, the consideration of the meaning of s44(i) and its previous interpretations makes up 40% of the Court's reasoned decision.

The most interesting parts, to my untrained eye at least, are that:
  • The Court firmly upheld the previous interpretation that the rule applies at the time they register their candidacy, not at the time the case is brought to the Court.
  • The Court has defined that a form of nationality like that British Overseas Territories one held by Nick Xenophon which does not allow free entry to the country does not entitle the person to the rights or privileges of a citizen, and therefore does not disqualify a person from the parliament. That sort of citizenship/non-citizenship would have been unheard of in 1899 and so it seems right to exclude it going on the Court interpreting the original intention of the writer.
  • The Court has affirmed that s44(i) does not allow for a foreign law to irredeemably prevent an Australian citizen from participating in the parliament, but without specifying how a foreign citizenship could be unilaterally renounced in the event of a foreign government not having a procedure for renunciation citizenship or refusing to honour a request for renunciation. That would need to be ruled upon by the High Court if and when it does happen.



The Court certainly wasn't taking the easy road, and ruled in a manner consistent with both the original intent and the previous interpretations of the same clause. But with it now having ruled on s44(i) three times with the same result every time, it looks like the next case can be tackled a little more simply without exhaustive consideration going right down to the number and position of commas in the original text.

I also question what a government could possibly do to change the issue - I don't recognise your use of the word 'fix' as it's not broken. The average man on the street thinks having MPs who are loyal to only one country is a great idea, so a referendum on changing the Constitution would get rejected by a whopping margin across the states (but possibly a yes vote in the ACT, as has happened with most pro-bureaucracy referenda that failed) and would become a good pathway to losing the next election. Any attempt to dodge around it with a normal Act of Parliament would quickly see the Act ruled as unconstitutional, not since the High Court has ruled on it and affirmed that ruling twice since then.

The only change I would like to see that is remotely related to this area is for the Commonwealth Electoral Act to be amended so that the Court of Disputed Returns is the Federal Court rather than the High Court. There are enough precedents for various electoral disputes now that they can simply be applied without all the drama of a High Court case.
  wobert Chief Commissioner

Location: Half way between Propodolla and Kinimakatka
All our budding lawyers seem to have gone quiet.

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