Australia didn’t have a revolution. Our constitution does not include birth and residence requirement like those of he American constituion.
You have to resign from the house of reps to take up a seat in the senate, so by clear convention you had to resign from your postion as an Australian parlimentarian to take up a seat in the British House of Lords, but that didn’t imply that there was a “seperate citizenship”. There was also a common court system, so if the question had come up, it would have been decided in London.
Having read up on it I am a bit more convinced that as at 1900, having British citizenship might well not have counted as owing allegiance etc to a “foreign power”. However, as legislative and judicial ties to the UK have been gradually - and since 1986 totally - severed over the years, I think the argument has lost its basis.
And indeed, since the High Court decided Sue v Hill, it’s a dead issue. The UK is a foreign power for relevant purposes. Period.
Martini, as to Gallipoli, what **mhendo **said. I know no such thing. If I could be bothered I would write out a full length rant as to what utter horseshit the whole romanticized Gallipoli myth is from start to finish. Some idiot pronounced it as the making of the nation one time, and people have been mouthing that drivel, without apparent rational thought, ever since.
If you must choose a military act as the birth of this nation, it wasn’t Gallipoli. Gallipoli was a bunch of colonial patsies being willingly sent to the slaughter in a complete fuckup of a campaign by their imperial masters. Far more of an actual turning point in Australia’s independence was Curtin’s December 1941 realisation and public announcements that the UK wasn’t going to help us, and, in early 1942 Curtin showing sufficient spine to tell Churchill to get fucked when the latter tried to divert Australia’s 6th and 7th Divisions to help the UK, leaving Australia itself to be damned.
I’m well aware of all that, and it doesn’t contradict a single thing i wrote. I simply observed that using the cultural significance of the Gallipoli battle in order to advance this debate is incredibly stupid.
Exactly.
For the record, i don’t deny Martini Enfield’s assertion that those who wrote the Constitution probably did not conceive of the UK as a foreign power. But the fact is that the relationship between Australia and Britain has changed in the intervening 117 years, and while the UK is still a friend and an ally, it is definitely a foreign power. Same with Canada.
I say all of this as someone who holds Australian, British, and Canadian citizenship.
That was C.E.W. Bean. He constructed an unambiguously heroic narrative in an effort to create a sense of Australian national identity and pride, and in doing so he intentionally and rigorously excluded any criticism of the war effort, any concerns about Australia’s fawning subservience to Britain, and any accounts of cowardice or brutality among Australian soldiers. It was a PR puff piece from start to finish, and it’s pretty depressing how quickly and irrevocably it got its claws into the collective consciousness in Australia.
While I disagree with the High Court’s ruling, I can at least see where they’re coming from. New Zealand, however, is a different kettle of fish; it’s explicitly mentioned in the Constitution as being a state of Australia anytime they want to be, the countries have had extraordinarily close relations right from the start, and given there are more people living in Sydney than all of NZ - a country which has no combat air force anymore, and a tiny navy - I really don’t think the country should be considered a “foreign power” under s44 of the Constitution.
Gallipoli was the first time Australians had fought overseas under our own flag (individual colonies sent a few mounted units to the Boer War and there were also some Australians present during the Boxer Rebellion). The complete debacle there helped establish the Australian & NZ identity and also laid the groundwork for the later experiences in WWII when it became apparent Australia’s goals were not necessarily the UK’s goals and vice versa.
Even if this weren’t an overly-simplistic historical explanation, it would still be irrelevant to explaining the issue at hand.
Maybe we should also determine Australian identity and international alliances based on the game of two-up, or the invention of the lamington, or the 1983 America’s Cup victory.
No, it wouldn’t, as it’s important in trying to establish the mindset that existed in 1900 regarding who was a “Foreign Power” for s44 of the Constitution. The short version: Nowhere with white White People from within the British Empire, because up until about 1915 it was taken as read that Australia = British.
Now, as Princhester notes that interpretation changed over the course of the 20th Century so that nowadays Britain clearly is a “Foreign Power”.
However, given we have the same Queen and share a lot of cultural links, I really do not see any major problem with a dual UK/Australian (or NZ/Australian, or Canadian/Australian) citizen being in the Commonwealth Government.
The High Court disagrees with me there, but given the recent situation s44 has bought about, I think it’s time either that element of the Constitution was amended/removed, or else its interpretation revised.
Now, did you have something constructive to contribute to this discussion or did you just want to be unpleasant to me for having a view you don’t like?
The fact that you disagree with me doesn’t mean that i’m not contributing something constructive to the discussion. Don’t whine just because i don’t agree with everything you say. And if you would actually read my posts, and take a moment to digest them, you would see that i don’t really disagree with your general position at all.
I’ve already acknowledged that those who wrote the Constitution probably did not define the UK as a foreign power. But, as Princhester has noted, and as you agree, our relationship with the UK has changed in the last 117 years.
I also happen to agree that there should not be any problem with a UK/Australian, NZ/Australian, or Canadian/Australian dual national serving in Australia’s national government. As i said, i’m an Australian and a British and a Canadian citizen, and i don’t think that my British or Canadian citizenship would detract at all from my ability to serve honestly and competently as an Australian member of parliament. If Australians decide to amend the Constitution to allow dual citizens to serve, i will applaud the change.
But none of that makes your argument about Gallipoli relevant, no matter how much you would like to believe otherwise.
You’ve yet to satisfactorily explain how, beyond “Because I don’t want it to”.
It’s a simple fact that the Anzac landings were the first time Australians fought under their own flag, as Australians. Sure, we got our asses handed to us, but the fact of the matter is up until April 24, 1915 Australians thought of themselves as thoroughly British. Once the fertiliser hit the ventilator in the Dardanelles that position was re-evaluated somewhat, but not in the “Well fuck the Poms, we’re going to get our own country, with blackjack, and hookers!” way. That really didn’t happen until WWII and afterwards, when it became pretty clear that A) The UK couldn’t/wouldn’t help us and B) The British Empire was disintegrating.
Australian citizenship didn’t exist until 1948. The simple fact of the matter is in 1900, there was no way any European in Australia thought Britain was some foreign power who didn’t have our best interests at heart. Gallipoli was the first evidence that maaaaaybe that wasn’t the case.
If you’ve got something that points to an establishment of a cohesive “Australian” national identity prior to WWI, I’d be interested to see it, though.
At you’ve yet to satisfactorily explain why it’s at all relevant, beyond “Because i think it should be.”
It’s simply a fact that some vague, informal, unofficial, and uncodified sense of a “cohesive national identity,” having no legal power and not even any formalized standing, is not relevant when discussing the applicability of the national Constitution to the formal and legal relationships that exist between nations.
Is that simple enough for you? It’s not that your argument about “cohesive national identity,” as a social and cultural phenomenon, is necessarily wrong (although it’s overly simplistic); it’s just that it doesn’t apply to the actual issue being discussed. The fact that some, even many, Australians developed a clearer sense of national pride and identity after learning a sanitized and carefully edited version of an infamous military campaign doesn’t really matter when discussing the question of whether the UK is now, or was at the time, a foreign power under the Constitution.
The one part of your argument that might actually be relevant is your discussion of the formalization of Australian citizenship with the 1948 Act, because in considering the extent to which citizenship reflects notions of independence, a court looking at the issue of Australia’s relationship with the UK could at least look back at formal legal decisions and legislative rulings related to that relationship, such as the 1906 High Court ruling that it was not interested in considering Australian nationality as a category distinct from British nationality.
Of course, that would probably cut both ways, because it seems to me that, while the court might look at the 1906 decision, or at the Nationality Act of 1920, and say that Australians at that time did not consider the UK to be a foreign power, the court might also look at the 1948 Act and see that as a definitive marker that separated Australia from the UK and the rest of the Commonwealth, and therefore the UK is currently a foreign power under the Constitutional definition, for the purposes of parliamentary elections. The fact that Canada enacted its own citizenship law a year before Australia might also strengthen an argument that Canada has legally been a foreign power since the 1940s.
The fact that some Aussies attend the dawn service and play two-up on April 25 would probably not be considered as an important precedent by the High Court in any such decision.
All that matters is that the results are stupid. This is someone who was elected to government. No actual ties to a foreign power have been demonstrated, just citizenship due to where someone was born. The people in question made a good faith effort to try and resolve this situation. They tried to follow the rules, and were caught out by technicalities.
As far as I’m concerned, this is the argument that matters first. From there, it’s just an issue of finding a way to interpret the law that gets the closest to this outcome as legally possible. The law should never be understood in a vacuum, disconnected with the actual results.
From there, we look for interpretations that work. My personal favorite is simply having case law that says that unknowingly violating this is acceptable as long as they then, in a reasonable period of time, take steps to resolve the situation. No need to use any of that other stuff. Just judges being reasonable, and not denying the electorate their elected representatives when they weren’t doing anything nefarious.
In common law, which Australia uses, reasonable interpretation of the law is up to the courts. An interpretation that produces an unreasonable outcome is not sacrosanct.
Look at the goddamned wording of the Constitution. It disqualifies from serving in parliament:
That’s pretty clear. It doesn’t require wilful or knowing ties or allegiances; it says very clearly that you can’t be a subject or a citizen or entitled to the rights and privileges of a citizen of a foreign power. It doesn’t say that this clause doesn’t count if you didn’t know about it, and it doesn’t say that the clause doesn’t apply to people who came to Australia when they were really young. If you’re a subject or a citizen of a foreign power, you can’t be in the Australian parliament.
Now, number (2) might be interpreted by some people as applying to at least one of the people involved in the current cases, but the report explicitly states that this applies only to people who do not know where they or their parents were born due to extraordinary circumstances such as war. It doesn’t make an exception for people who failed to check their parents’ assumptions, or who couldn’t be bothered looking into hos citizenship works.
As that report notes, the Australian courts, including the High Court of Australia, have considered many of these issues in multiple cases. Can you show that any of their decisions have been unreasonable or outside the bounds of Australian Constitutional law?
As i said earlier, i’d be happy if Australians decided they wanted to amend the Constitution to allow dual citizens to serve in parliament. But just because you or i think that this would be a reasonable thing to do doesn’t mean that it’s currently allowable under the Constitution, or that the way the current cases have proceeded is wrong or immoral.
To be quite frank, as someone who was born outside Australia and who holds multiple citizenship, i find it pretty damn mind-boggling that anyone could be born overseas and not understand himself or herself as retaining citizenship. At the very least, in those Senators’ positions, i would have looked into it long ago.
On this we agree. If you know your parents aren’t from Australia and you’re considering running for Commonwealth parliament, a bit of research to triple check you’re not also a citizen on Elbonia by descent should be pretty high on the priority list.
Which per the HC is irrelevant. You say it shouldn’t be irrelevant, but the problem (as the HC recognises) is that as soon as the HC starts down the highly subjective road you are asking them to take, you are asking them to start drawing lines about who can and cannot be in the Australian parliament, based on feelings.
It would be vastly more germane to say you are yet to satisfactorily explain how Gallipoli is so important, beyond “because you want it to be”. We are talking about a point of constitutional law, not “what I feel is important on the subject of national identity” a topic that is completely subjective at the best of times.
Firstly, the first evidence that it might rain is a black cloud on the horizon. But one wouldn’t say it has rained till it rains. Your statement about Gallipolli, even if correct, is a good argument as to why you are wrong.
Secondly, at a [somewhat] flippant level, what about the fact that there has been an Australian cricket team - to test standard - since 1877. Knowing how seriously we take our sport, saying we had no national identity when we had our own cricket team is not overly convincing.
At a far more serious level, something that points to establishment of a cohesive “Australian” national identity. Hmmm, let me think about it. How about, I dunno, maybe the people voting for Federation in 1899 or the establishment of the Australian Federal Government on 1 January 1901?
If you want something more subjective and cultural, read this section of Wikipedia, but I’ll give you a quick taste:
“A serious movement for Federation of the colonies arose in the late 1880s, a time when there was increasing nationalism amongst Australians, the great majority of whom were native-born. The idea of being “Australian” began to be celebrated in songs and poems.”
When Canadian troops start landing on Bondi Beach, are you going to be with us? Can we trust you, really?
Actually, my view is this: “Are you from a country which has QEII as head of state? Great, you can be in the Commonwealth Parliament.” It’s not based on feelings, it’s based on having the same head of state - the person to which technically all parliamentarians are supposed to be representing the people for anyway.
I’m pretty sure that if Canadian troops ever land at Bondi Beach, they’ll hold their right hands out in friendship, and their left hands out for a cold beer.
Seriously, even though Canada and Australia are independent countries, and have no relation to each other nowadays, I cannot think of any eventuality where they would take up arms against each other.
No, it needs to be re-written. It isn’t up to the HC to go re-writing the constitution. And there is no way they could plausibly re-interpret it to get around the current debacle. Even if they took your view on (for example) NZ and the UK, that wouldn’t avoid the problem of people like Matthew Canavan, because there’s no way that Italy isn’t a foreign power. It’s a very broadly written section. The HC can’t just read it down into meaninglessness.
