equanimity.blog

Australian Born, British Bred: Barred from Parliament

I’m not allowed to sit in parliament because my father was British.

Tony Abbott was born in Britain.

Our Head of State is British.

So why am I barred from Parliament?

No, I’m not a criminal. I’m not even from convict stock. It all has to do with Section 44(i) of the Constitution:

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 a citizen of a foreign power shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives

From The Founding Stock; Yet Treated Just Like Everyone Else

I’m fourth generation Australian on my mother’s side, first generation British Australian on my father’s side. Because I was born before 1 January, 1983, I am automatically a British citizen (U.K. Govt.).

If I don’t renounce my British citizenship, I can’t stand for election to federal parliament. That is what Tony Abbott did.

Dual Citizenship crisis

In 2017, the dual citizenship crisis in the Australian Parliament found eight senators and seven lower house MPs were ineligible to serve due to holding dual citizenship. This significantly impacted the political landscape, briefly depriving the Turnbull government of a majority in the lower house. Eight senators were returned or replaced by High-Court-ordered countbacks, and by-elections were held for the seats of the seven affected House of Representative members.

The crisis demonstrated how widespread parliamentarians’ ignorance is of both Section 44(i) and their dual citizenship status.

Swearing Allegiance

Recently, another dereliction of duty to the constitution has developed, but one done knowingly in protest; swearing the prescribed oath of allegiance to the King upon taking a seat in Parliament. It started with Lydia Thorpe fudging the word ‘heirs’ with ‘hairs’. Then Bob Katter outright refused, saying, “No. I swear allegiance to the Australian people.”

Bob Katter seems not to understand that Charles III is the King of Australia. The Crown is divisible. It has been since 1931. His protest is an act of ignorance. However, the confusion is perhaps understandable. Our present system is, to say the least, complex.

There are procedures for altering the constitution. Simply violating it says something about the quality of our serving members. A responsible member of parliament who objects to our constitutional Head of State arrangements should propose a solution, as I have HERE.

Proper Procedure

The 2017 dual citizenship crisis prompted calls by some people for constitutional reform to prevent dual citizens from being disqualified. That would require a referendum. An opinion poll taken in 2017 found overall opposition to changing section 44(i) was 49% to 47%, with 5% undecided.

Former Professor of Practice (Law) Bruce Dyer, argues that a referendum may not be necessary. The High Court has ruled in favour of a stricter interpretation of the section that departs from the original intention the framers of the constitution had for it. It could both simplify how s 44(i) is applied and create more leeway for dual citizens if it returned to the ‘original’ meaning of the words in the section rather than their ‘ordinary’ meaning.

Dyer says that Australian citizens who are not aware they have foreign citizenship should not be prevented from joining parliament.

Our dual citizens should not be made to feel like second-class citizens. Doubting loyalty without reason undermines it. And this is not a good time to reduce unnecessarily the pool or diversity of eligible parliamentarians.

27.09.19. What Was Barton Thinking? Australian Public Law.

His argument is based on a restoration of the ‘1900 approach’ to Section s 44(i) of the Constitution, an interpretation that existed when there were many foreign nationals who were also BRITISH SUBJECTS, a status that is now extremely limited. That status is now taken as being ‘Australian citizen’. “British subjecthood was widely considered a valuable privilege, giving those of foreign ancestry much-improved status.” The same is said of Australian citizenship.

However, there are now many signs that Australian citizenship is not valued as a privilege in quite the way it should be.

Consider the case of Fatima Payman, a dual Afghan Australian citizen. Senator Payman retains her Muslim faith, always covers her hair and in 2024 defied the Labor party caucus to vote for the recognition of Palestinian statehood. She was subsequently pressured by the PM and party colleagues to leave the party and leave the Senate. She remained in the Senate as an Independent. The Labor government formally recognized Palestine the following year (PM). She also used the phrase “from the river to the sea, Palestine will be free”, which has since been banned as hate speech. (ABC)

Senator Payman tried to renounce her citizenship when she applied to be the Labor Party’s candidate in 2021, but the Afghan government was so dysfunctional, it wasn’t able to process it. According to the High Court, she has done all that is required, as least until she attempts to be re-elected. Alexander Voltz of the Australian Monarchist League, asks why she has not “undertaken to renounce it via Australia’s consular mechanisms in Doha, as an act of good faith to the Australian, not Afghan, citizens she represents in the Senate.” (Skynews) Why is she waiting?

The current High Court interpretation of s 44(i) (the ‘1990s approach’) has done nothing to prevent impetuous people entering our parliament who have dual citizenship with basket-case countries and customs that conflict with our own. It seems to me the intention of the dual citizenship ban in the constitution has been thwarted, despite the High Court’s stricter interpretation.

Dyer’s support for returning to the original intention of s 44(i) would make the determination of dual citizenship simpler, “based on matters likely to be within the knowledge of the person concerned and not require foreign law advice, genealogical research or continuous monitoring of all foreign nationality laws”.

This is an appealing proposition. However, the ‘1900 approach’ applied at a time when there was great esteem for the British Empire. The same cannot be said of Australia today, it seems.

If the High Court upheld a ‘1900 approach’ to s 44(i), it would not change Fatima Payman’s obligations because she is clearly aware of her dual citizenship.

However, in my case, I could have grown up and stood for parliament without knowing of my dual citizenship. My father died when I was one. It is only because he was the love of my mother’s life and his sister in England maintained contact with the family that my affinity with British culture was not lost. It has enriched my understanding of Australia beyond measure.

It is ironic that because of that, I would have to renounce my ties to Britain to stand for parliament. Dyer’s suggestion would only serve to engender even more of the kind of cultural amnesia, not just of Australia’s heritage, but of other cultures’, too, that is undermining the prestige of Australian citizenship.