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Australian citizenship and Democracy

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carbon20 View Drop Down
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    Posted: October 27 2017 at 3:02pm

What the High Court citizenship decision says about the health of our democracy

By Rosalind Dixon

Updated yesterday at 5:19pm

In many ways, today's High Court decision has a greater political than legal significance.

Politically, it requires the deputy prime minister to step aside and face a by-election, putting at risk the Government's narrow majority. It could also potentially raise questions about the validity of certain decisions the deputy prime minister made as a minister.

But from a legal perspective, it is a quite straightforward decision.

A strict standard

It has extended the approach the High Court took in an earlier case, Sykes v Clearly, holding that section 44 bars MPs from being citizens of another country according to the definition of citizenship provided by foreign law.

The approach the court took then, and now, is that an MP is not eligible to run for Parliament unless they take all reasonable steps — under the procedures established by foreign law — to renounce foreign citizenship.

The standard is a strict one: It is no excuse, for the purposes of section 44, that an MP has no real ties to a foreign power, or did not in fact know they were a citizen of another country.

But it is not a wholly absolute one: the court recognises foreign countries cannot make it impossible, or unreasonably onerous, to renounce allegiance to that country. To allow this, the court held, would impermissibly undermine "the constitutional imperative that an[y] Australian citizen" be able to participate in representative government.

The two MPs who survived the effect of the High Court's decision, senators Matthew Canavan and Nick Xenophon, did so for quite specific reasons: in Canavan's case, the intricacies of Italian law meant he was in fact not found to be a citizen under Italian law. And in Senator Xenophon's case, it was because he was a "British overseas citizen", a form of quasi-citizenship under British law the court held did not amount to full citizenship.

Deeper meaning for democracy

The decision is a unanimous decision, jointly authored by all seven members of the court, and runs to only 44 pages (long by ordinary standards, and given the timeline for decision, but short for a decision that has to grapple with the separate facts for seven MPs).

This simplicity, however, ultimately masks a deeper political and legal importance to the decision in what it says about Australian democracy.

The decision points to the fundamental health of Australian democracy in two ways: first, the Government has already announced its intention to comply with the decision, by announcing the date of a by-election in Mr Joyce's seat of New England.

There has been no criticism by the Government of the court, and certainly been no suggestion the Government might choose to ignore the decision, because of its politically inconvenient consequences.

Contrast this with recent statements by US President Donald Trump on Twitter attacking members of the federal judiciary as "so-called judges", for decisions to enforce the constitution and block the Trump administration's travel ban, or the Polish Government's move to ignore a decision of the Constitutional Tribunal regarding the constitutionality of appointments to the tribunal.

Not every country that counts itself a democracy has been able to count, in recent years, on government respect for controversial — or deeply inconvenient — judicial decisions.

Court took its time

Second, the decision shows a High Court working in ways that promote both democracy and the rule of law: the High Court set down and heard the matter in a timely way, but without adopting a schedule that could compromise proper argument or process.

It also construed the language of section 44 in a way that showed respect both for the rule of law — that is, the text of section 44 of the constitution — and the court's own prior precedents.

But it also adopted an approach consistent with a commitment to democracy, or our constitutionally prescribed system of representative and responsible government.

The court did not adapt quite as flexible, or purposive, a test as I would have favoured, but one that is clearly conscious of the requirements of attention to constitutional structure and the values of democracy.

The exception it crafts for individuals who attempt to take all reasonable steps under foreign law to renounce their citizenship is one designed to protect our system of representative government, and thus itself a product of a commitment to democracy.

The decision may be inconvenient, and expensive for the Government and tax-payers required to fund a by-election. But this also seems a very small price to pay for living in a well-functioning democracy.

Rosalind Dixon is Professor of Law at UNSW Sydney.

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CRS, DrPH View Drop Down
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Post Options Post Options   Thanks (0) Thanks(0)   Quote CRS, DrPH Quote  Post ReplyReply Direct Link To This Post Posted: October 27 2017 at 8:16pm
God Bless Australia!  You've always been true friends to the US, UK and world community (except the bad guys). 
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EdwinSm, View Drop Down
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Post Options Post Options   Thanks (0) Thanks(0)   Quote EdwinSm, Quote  Post ReplyReply Direct Link To This Post Posted: October 27 2017 at 10:15pm
As the world becomes more mobile we will see lots more questions arising from dual nationality. 

Here in Finland where there is male conscription to the forces questions are being asked about those with dual citizenship (especially Finnish-Russian) and how far their training should go.

I think that in general the laws of nationality are way behind the practices and the messiness of having more than one nationality [or those poor people who have none]



BTW my children hold dual nationality [which could help them when Brexit hits]
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Post Options Post Options   Thanks (0) Thanks(0)   Quote Technophobe Quote  Post ReplyReply Direct Link To This Post Posted: October 28 2017 at 2:27am
It might keep you out of the government but dual nationality is very desirable.  I went to great lengths to get it for my kids and husband.  I wish it could be obtained for my friends too.  

If you have dual nationality, or better still multiple nationalities, you can always "vote with your feet" if your government becomes too dangerous to its citizens, your country becomes uninhabitable or any other potential nightmare arises.

Who saw Hitler, Stalin or Mao coming?  Come to that, who saw Trump, Assad or Xi coming?

Nationality is part of a prepper's arsenal.  More than one passport should nestle in your bug-out-bag.


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Post Options Post Options   Thanks (0) Thanks(0)   Quote Medclinician Quote  Post ReplyReply Direct Link To This Post Posted: October 31 2017 at 9:37am
This is totally political. What is it doing here? This has nothing to do with health, disease, even climate. 

"Absolute power corrupts absolutely."

One who holds unchecked power or authority is likely to become corrupt or abuse one's position. This phrase is usually attributed to 19th-century historian Lord Acton. He really started abusing the authority of his office when he was promoted to CEO. Absolute power corrupts absolutely.

I would be glad to debate you on Australia in the political section.

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Post Options Post Options   Thanks (0) Thanks(0)   Quote Technophobe Quote  Post ReplyReply Direct Link To This Post Posted: October 31 2017 at 3:49pm
Nonetheless, Med, it is an important thing.  I am glad it came up.  A variety of legitimate passports is a very valuable prepper's asset..

It's worth thinking about.


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Post Options Post Options   Thanks (0) Thanks(0)   Quote KiwiMum Quote  Post ReplyReply Direct Link To This Post Posted: October 31 2017 at 8:26pm
Techno, I agree it's worth having dual nationality. Our family has it and we also qualify for an Irish passport if we wanted to get one. But we choose only to have our Kiwi passports. Holding more than one is very expensive. I could prove, at the drop of a hat that we have dual, but don't feel the need to keep paying for more passports. Anyway, a Kiwi passport is one of the safest in the world. 
If it is to be, it is up to me.
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Post Options Post Options   Thanks (1) Thanks(1)   Quote carbon20 Quote  Post ReplyReply Direct Link To This Post Posted: October 31 2017 at 9:35pm
I only have an Australian passport,i did have a British one and when it goes back to the "Blue"i will again... Maybe, very happy to call myself Australian,after 30 years here
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