12th November 2017
A lot of people agree to my call to amend the Australian Constitution
I posted an article on Catallaxy Files here.
A large number of comments were received. I reviewed them today and posted my further comment/ response here.
Unfortunately there were some typos in my comment, so I’m posting it here as well, with some amendments. It probably needs further edits, and I’ll do so when I find time.
MY FURTHER COMMENT
Finally found time to review the comments. Thanks to everyone who took the time to say something.
Let me repeat my main point which is about the foundational meaning of democracy: citizenship without the right to represent in parliament is **not** citizenship. It can be called permanent residency, but not citizenship.
Voting rights are the foundation of all citizenship. And all those who have a right to vote must necessarily have the right to represent in parliament. No taxation without representation, as they say. In brief, all those who have been issued an Australian passport must be treated as first class citizens and have the right to represent in the parliament. The current system issues Australian passports to so-called citizens but many of these are actually second class citizens.
There were some readers who thought I am defending breaking the law. Note that I did not call for breaking or ignoring the law. I also have no issues with the High Court’s interpretation of the Constitution and for the large number of parliamentarians being removed for non-compliance with the current law. All I’m doing is saying that this is a bad law and therefore must be reviewed and changed.
Some readers spelled out the detailed process of change. I agree with them: “You can argue about those restrictions but there is a clear avenue for change: a referendum. If you really object to the restrictions in the constitution, argue your case, get people to agree with you and win a referendum”; “The constitution allows itself to be changed through the will of the people. It therefore is a living , changeable document, and therefore can never be old or irrelevant. It, through democracy, can be changed through the years. It’s just up to us, not our representatives over- ruling us.”
NOW, WHAT IS THE UNDERLYING POLICY PROBLEM?
There was one reader who took time to articulate the real policy issue underpinning the current law: “Those people are, in effect, arguing that somebody with divided loyalties (think Chinese-Australian, Afghan- Australian, Yemeni-Australian, North Korean-Australian, for example) should be free to work his/her way through the political system all the way to the Cabinet table, where he/she would have access to highly sensitive Australian security documents.”
That’s a real issue, and indeed, I started my article by acknowledging this issue. But then, I asked for evidence. And there is none. In relation to Barnaby Joyce, one of the commentators noted: “I don’t honestly believe that Barnaby Joyce has divided loyalty. I think he believes he is 100% Australian.”
Indeed, that’s my point. How is it that Barnabay Joyce is less loyal to Australia than I am?
Any good policy starts by asking what is the problem, understanding the nature and extent of the problem, working out options to deal with the problem and then legislating a policy. In my view the current policy (yes, the constitution is also a man made policy: it is NOT the word of god) does not deal with the issue sensibly and is therefore bad policy.
Today, we have a really strange situation underway. The same person who is kicked out of Parliament can relinquish any of the unwanted citizenships that were foisted upon him or her by some quirk of ancestry by signing a piece of paper and is then declared to be “cleansed” and eligible to become a parliamentarian again. How does this make sense? How can a mere piece of paper mean more than the actual behavior or intent of the person?
And we are talking about citizens here – citizens who have never been proven to have acted against Australia’s interests. What kind of a free society restricts the rights of its citizens without having any evidence of harm caused? This is an anti-freedom policy.
MANYREADERS HAVE AGREED WITH ME
My arguments have made sense to many readers:
“As far as S.44 goes, that’s as clear a case of the letter of the law running rampant over the spirit of the law as there’s ever been. Not one – a single one – of the so-called dual national MPs stands accused of acting against Australia’s interests because of their dual citizenship… If John Alexander, whose father emigrated here over a century ago, renounced his citizenship and cut his ties to the Mother Country before his son was born, is regarded as being ineligible to serve in Parliament by the Constitution, then the Constitution is wrong, plain and simple”
“the irony that it places the eligibility of citizens in the hands of the very foreign powers the influence of which the Constitution seeks to prevent.”
“This is a mess, and literal interpretations (actually, what the justices think) are unhelpful, so commenters should desist from abusing the poster.”
“Until 1986 the oath taken by citizens by naturalisation included a renunciation of any other allegiance,and that should have been sufficient, especially given the Dastyari situation (where Iran does not permit citizenship to be renounced). But this provision was removed – which was an important contribution to the current mess.”
“It’s a stupid law, passed when there was no such thing as Australian citizenship, only “British subjects”. Now someone who has British parents cannot sit in our Parliament”;
“I am always suspicious of those who want to add limitations to the process of democracy”; “This rule belongs in the horse and buggy era. Get rid of it.”
“who is going to tell my children they can’t be prime minister as I was born in Britain? They think the are all Australians – should I disillusion them?” “Barnaby Joyce can’t sit in parliament because in some purely theoretical realm he is apparently a Kiwi. Any rule that tbrows up such an absurdity is self evidently an ass.”
“So now we have idiots in the press like Chris Merritt in the Oz referring to people such as Barnaby and Josh Frydenberg as “foreigners” who need to be “sent packing”. Nice” “It is hardly edifying to think that Frydenburg may be ineligible because of a formality in the law of a foreign country that drove his grandparents away as part of the Holocaust. The Holocaust, for Christ’s sake.”
Another agreed to the absurdity that is implicit in the law: “Had I been sitting in parliament in March 1991, I would have been a true blue dinky di aussie basking in the admiration of my peers and the public. Then on 6 Mar 1991 Romania changes its citizenship laws restoring Dads citizenship , & therefore makes me eligible for Romanian citizenship and all of a sudden I am a stinking foreigner & need to be terminated with extreme prejudice from parliament. Sinc, If I were in Parliament today, how often would I need to check to see if my eligibilty for citizenship from Germany, Estonia & Russia (through grandparents) have been restored ? How would I go about preemptively renouncing something I am not legally entitled to? If I did preemptively renounce , would say a law change in Germany, even take into account the fact that I had renounced ?”
Another pointed out the key problem – the disconnect between voting rights and the right to contest elections: “But [Section 44] only applies to politicians. If it applied to voters, they’d spend billions in tracking the history of every member of ON or the AC that intended to vote.”
One of the commentators defended the constitution but then added that after everything is cleaned out, “put in place safeguards to protect sitting members and senators from retrospective eligibility for duel citizenship, when imposed in the future at the whim of a foreign power. Otherwise we’ll be doing this dance all over again.” – basically acknowledging that the policy is dysfunctional.
BUT MANY DUG INTO THEIR HEELS
However, a majority of the commentators dug into their heels. Most confuse the rule of law and the letter of the law. These are quite different things. The rule of law is the organizational principle of a free society which allows for the creation and ongoing change of laws through representation. The “law”, on the other hand, is specific, like the current words used in the Constitution. The law must, of course, be obeyed. But that is not called following the rule of law. It is called obedience with the law. That’s only one small part of a free society. A free society constantly evaluates and reviews its laws for sense. It continually improves its laws and implementation/ enforcement mechanisms.
I strongly urge everyone to follow the current law (including auditing **all** Australian parliaments since inception) but I believe a free society is obliged to review its laws for sense every time the outcome of the law doesn’t make sense.
Arguments offered in favour of not changing the law included:
“I agree that s.44 is rather silly – particularly so for people who are Australian citizens only and are ineligible simply because they are entitled to citizenship from a foreign country, but that’s just the way things are.”
“I am quite satisfied with the current constitution”.
“It’s called rule of law, Sanjeev.” [Sanjeev: no it is not!]
“The problem is not with the constitution.”
“The history in Australia is very clear: we do not like to change the constitution. That means most of us are happy with it as it is.”
“It is not a policy. The constitution is the founding document defining the rules governing the country. It is the basis for the rule of law in Australia”;
“Section 44 is a brilliant piece of law and the Australian people overwhelmingly support it.”
“If you want to stand for election in Australia and get your snout on a gravy train, stop grizzling about the few hundred fee that you will have to pay NZ (nothing to do with us) as it will be less than a morning’s pay once elected.”
As you can see, those who opposed re-thinking this law had no cogent argument to make. Many of them attacked my person. Ad hominem is all they had to offer. But sorry guys, isn’t that a clear sign that you don’t had no real argument to offer. I’d appreciate if you can offer a real rebuttal to my arguments (and many more that have been offered in the comments) that demonstrate that this is a bad law.
Let’s not have second class citizens in Australia. Every voter must have the right to contest elections.
Some further thoughts for possible conversion of this into a proper article:
– write about key principles such as proportionality of the law, no taxation without representation. So if someone has harmed Australia’s interests, then the law should first punish him followed by ejection from the Parliament.
When you give someone an Australian passport, you give him full rights of citizenship. There are no half-rights.
We have a strange situation that someone can represent Australia in the Olympics but not in their own parliament.
Henry Ergas is getting there: “we must be capable of finding a better way than section 44(i) of aligning a prohibition on escape hatches with the realities of contemporary nationality law. Until we do, the havoc will continue, and the damage to our democracy will too.”