Unless you have had the unfortunate displeasure of being completely disinterested in politics, live under a rock or, worse still, do not care for the news, you would’ve heard that the High Court of Australia handed down its judgment on the fate of seven Members of Parliament and Senators, the most prolific of which was none other than Deputy PM Barnaby Joyce. The only survivors were Sen Matt Canavan and Sen Nick Xenophon.
The case arose due to the possession by these representatives of citizenship of another foreign country. This is, at least on the face of the text, prohibited by Section 44 of the Constitution. Section 44 provides:
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 … shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.
It should be noted that the text of Section 44 does not require that a representative with foreign citizenship must acknowledge such allegiance or obedience. There appear to be separate categories of disqualification, as evidenced by the ‘or’ in line two – one for a person who is under any acknowledgment, one for a person who is a subject or citizen and one for a person who is entitled to the rights of a citizen.
The question before the High Court was essentially the following:
‘Should a person who is in fact a subject or citizen of a foreign power be disqualified or should the High Court read into Section 44 further elements such that a person may be disqualified if they are a “citizen of a foreign power for the purposes of Section 44”?’
The Solicitor-General, Mr Donaghue QC, representing the Attorney-General, argued essentially that there needed to be a knowledge element imposed on Section 44, that persons needed to have ‘knowledge of a real and substantial prospect’ of foreign citizenship. He pointed to the intent of the section, as outlined by the High Court in Sue v Hill, that the section has the purpose of preventing split allegiance, and argued that a person could not have split allegiance if they did not have knowledge of a real and substantial prospect of foreign citizenship.
I should point out here that there has been some criticism over the advice and advocacy of the Solicitor-General in recent days. This is unwarranted and deeply disrespectful.
The Solicitor-General, an exceedingly eminent Queen’s Counsel, did exactly what he was employed to do; argue the government’s side of the case. Faced with the task of circumventing the words on the page, he did an admirable job. I watched a large part of his advocacy on the High Court’s audio-visual recordings and I found him to be extremely competent, well-argued and thoughtful. As to the advice he provided to Turnbull and his colleagues, we will never know what was in that advice. However, even if the advice included words to the effect of ‘the High Court will so hold’ – something I sincerely doubt – it is surely an arguable position which Mr Donaghue put forward and one which could only be defeated by a distinctly textualist approach to the Constitution.
Unfortunately for the government and for the Solicitor-General, yet fortunately for good of Australia and her institutions, the High Court did take such an approach. Here are some reasons why Australians should rejoice that they did:
The High Court is not SCOTUS
The High Court, and indeed Australia’s constitutional jurisprudence more generally, is in another universe when one examines the ‘Unlearn Law’ which has come out of the Supreme Court of the United States (SCOTUS, for short). Regardless of your stance on abortion, Roe v Wade is simply judicial activism at its worst. To imply a right to an abortion until foetal viability from a right to privacy under the 14th Amendment is, to say the least, an exercise in creative linguistics. Worse still was the decision in Obergefell v Hodges which implied a constitutional right to same sex marriage, again from the 14th Amendment.
The problem with many of the decisions which have been handed down by SCOTUS, apart from the fact that their appointments and judgments are far more politically motivated, is that many members of the court (notable exceptions included Justices Scalia and Gorsuch) subscribe to a non-literalist, non-originalist school of constitutional interpretation. They say that the text of the constitution, despite the words contained therein, and the meaning of those words in the context of when they were drafted, must be interpreted (read: overruled) in light of modern society and values. Some even go so far as to say that the Constitution should be interpreted in light of human rights/international law. I would argue that this kind of approach undermines the Rule of Law. Individuals and governments must be aware of what the law is so that they might obey it.
The High Court has affirmed its literalist/Originalist approach to Constitutional interpretation
With the exception of perhaps two former judges (Justices Kirby and Murphy) – there are a few more I could include on this list, though to a lesser extent – the High Court has not embraced these liberal interpretive approaches. This is a very good thing. A literalist/Originalist approach is the only way to give certainty to governments and individuals who seek to rely on and operate under its provisions. If the words contained in the Constitution have a legal effect which coincides more or less with their natural and ordinary meaning as understood at the time of Federation, it provides clarity and certainty as to the rights, obligations and powers of the individual and of government.
Importantly, a literalist/Originalist approach provides the exercise of government power with an objective grounding. The powers of the Legislature and of the Executive cannot wax and wane in line with judicial opinion. Nor can the rights of the individual be abrogated by an unelected majority of four High Court judges.
A literalist/Originalist approach gives expression to the will of the people, not the will of unelected judges. Quite simply, if the Australian people desired to allow their representatives to hold dual citizenship, they are perfectly free to do so under the referendum procedure set out in Section 128. The low success rate of referenda in the past and the lack of traction for constitutional change generally is an expression of satisfaction by the Australian people as to the text and effect of their constitution.
No split allegiances for our leaders
I feel strongly about the application of Section 44 and the need to ensure that there is no split allegiance, whether actual or potential, of our leaders. The fact of the matter is, if you wish to lead our great nation, you should be 100% on Team Australia. Our leaders must be working for the good of the Australian people and of Australia first and foremost.
The obvious retort to this point is that many representatives may have no knowledge of their foreign citizenship, as in the circumstances of this case. There are two main issues with this argument. First, there are obvious evidential issues surrounding just what knowledge representatives possess. It should not need to be stated that persons with nefarious intentions would not be particularly candid in this regard. Second, and with more weight in my opinion, is the issue of duties and responsibility imposed by the foreign country on its citizens. Conscription is an obvious example. There is nothing in principle preventing a foreign country passing a law that all citizens within a defined category must immediately undertake military service in response to a war. A less obvious example, but perhaps more relevant in the 21st Century, would be laws regarding data or meta-data usage and reporting for citizens of a country. The proposition that our representatives be compelled to such obligations is simply unthinkable.
We should be thankful for our High Court. Our judges continue to uphold the institutions of an independent judiciary and the Rule of Law. Chief Justice Kiefel and Justices Bell, Gageler, Keane, Nettle, Gordon and Edelman got it 100% right. Thank you.