Of High Court judges and governors-general, Sir William Deane was more distinguished than most; but in Sykes v Cleary (1992) he made a very significant error. In respect of two dual nationals—an Australian/Swiss and an Australian/Greek—and their issue with section 44 (1) of the Constitution, he introduced the subjective idea that we can look into the minds of candidates for election to determine their qualification. Section 44 (1) reads:
Any person who … is under any acknowledgment of allegiance, obedience, or adherence to a foreign power, or is 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.
This has two limbs: (1) acknowledgment of allegiance, etc., and (2) being a subject or citizen. Of these, Deane J said:
The first limb of the sub-section … involves an element of acceptance or at least acquiescence on the part of the relevant person. In conformity with the purpose of the sub-section, the second limb … should, in my view, be construed as impliedly containing a similar mental element.
But acknowledgment (in the first limb) is intrinsically subjective—something only a mind does—where citizenship is substantially an objective fact, which minds might come to know or influence (or not). Why should the second be forced into the first? Why not the other way around? And what justification is there for changing either part of the constitutional provision? Happily, Deane J’s gloss of subjectivity was rejected by the rest of the court, and Sykes v Cleary was presented to the future as a clear authority for the objective interpretation of the citizenship limb. And, after much political hullaballoo, this was simply confirmed by the recent High Court case.
So why was there thought to be an issue? What were the legions of lawyers doing in the High Court in October? Deane J is (correctly) regarded as a fine judge, but this gloss of his on section 44 (1) is weak, and of a kind distinctly unattractive to a lawyer. I suppose the answer to what the legal legions were doing is that they thought it was their clients’ only chance. And what a chance! Once you open the section to a candidate’s subjective knowledge you open the section to any number of differing interpretations, half a dozen of which were presented to the court. The resultant three days of argument was like a circus; each performer presenting their own version of the art of daring impossibility.
This essay appeared in a recent Quadrant.
It was not their only chance. In pursuing Deane J’s gloss they were in effect asking the court to overrule Sykes v Cleary, for the gloss was contradicted by the decision. In fact, they should have been asking the court to overrule another case, Sue v Hill (1999). But that case barely rated a mention.
What these lawyers did was crucial to the outcome. The High Court does not itself determine the way a case is developed, for the system is an adversarial one, and therefore for the most part is dependent on the way the adversaries have presented it. It is the lawyers, and their clients, not the court, who bear the main responsibility for the constitutional mess Australia now finds itself in. Of course, it is an unusual thing for lawyers to invite the court to overrule an earlier decision, and is not done lightly. But, as I’ve said, they were already doing that to Sykes v Cleary: they just chose the wrong case.
That the overruling of Sue v Hill is the one argument that could have saved the Barnaby Seven, and saved the country the current mess, is so obvious that it is easily overlooked. Why did the Australian Constitution, when it listed the Australian powers of governance, adopt the unusual term “external affairs” for its description of what is normally called foreign affairs? Because the constitutional power was intended to include relations with the United Kingdom and the other monarchical dominions, and those relations were not foreign. The word foreign would therefore not do. In general, foreign relations were always relations in the name of the Queen. Thus when section 44 (1) refers to a citizen of a foreign power it means a power foreign to the Queen of Australia; and to suggest that the Queen of Australia and the Queen of New Zealand and the rest are foreign to each other is absurd. Constitutional theory has always recognised that a constitutional monarch has two aspects: a personal one and the public one of the realm in which they are (by fiduciary duty to the people) constituted. The realms are different in the section 44 (1) cases, but they cannot be foreign to each other since the personhood of the monarch is the same. Thus most of the monarchical dominions and other realms of the (British) Commonwealth, and Britain itself, are not foreign within the section’s meaning.
With the Australia Acts of 1986, Australia became an independent nation; as did, in their various ways and times, the other dominions. Each became a discrete realm within the monarchy, and independent. In terms of independent power there is no difference between a discrete realm within the monarchy and that same realm/nation outside it. For example, within the monarchy, one discrete realm can expel another realm’s subjects (as the High Court has decided in various cases), and while this says much as to the plenary nature of their power it says nothing at all about the monarchy. There is no reason to think of the general sense of independence as in any way compromised by the monarchical relation. This general sense must certainly have been contemplated in 1901 by someone looking at the new federation, for Australia was never intended to be a permanent dependency. But what could not have been contemplated in 1901 was that Australia and the United Kingdom might become foreign to each other in the limited sense of section 44 (1). The monarch was a foundational postulate in all the constitutional reasoning that went into the construction of the Australian Constitution; and still is, following the failure of the 1999 republic referendum.
In Sue v Hill the One Nation senator Heather Hill was disqualified in circumstances equivalent to most of the current crop of cases. In her case the High Court decided that Australia, which had been an independent nation since the Australia Acts, was henceforth to be an independent and foreign nation. Independence and foreignness are terms that go both ways: in each case the postulated relation is reciprocal. But independence does not mean the same thing as foreignness; as any parent knows, the point in parenting is to bring children to independence: it is not to make them foreign. Without any argument, the judges equated these two things. This decision had only one substantive sense: the removal of the monarchy from the meaning of foreign in section 44 (1) of the Constitution. It made no other substantive change. As I’ve said (referring to the power of expulsion), the decision made no difference to any real issue of power and independence. And it is true that the High Court is entitled in certain circumstances to update the Constitution, but its decision attempted to update the Constitution in this one respect alone, the rejection of the monarchy. And how could it think it had power to do that?
It thought it in an entirely muddled way. The strategy of its reasoning was to look at the individual issues of Australian governance (the legislative, executive and judicial powers) and find that in each case Australia was independent of the United Kingdom. In each case the relation was now one of independence, and therefore foreignness. The reasoning proceeds: these three add up to the whole, ergo Australia and the United Kingdom are independent of each other and therefore foreign to each other. In looking at discrete individual issues, rather than the whole question of foreignness, the High Court presented an example of the fallacy of Achilles and the tortoise. A tortoise starts a race with Achilles, who never catches it because by the time he reaches any discrete point the tortoise has gone a little bit further, and so on to the infinitesimal, Achilles never quite catching the tortoise. What the paradox shows is that the whole of a complex issue is not explicable by the sum of its parts. Catching the tortoise is the whole issue of the fabled race, and foreignness the whole issue of Sue v Hill. In reality Achilles does catch the tortoise; and in the whole reality of Sue v Hill the monarchy gets the boot.
The monarchy on which section 44 (1) turns is not a power of governance: it is deeper than those powers, for it goes to the affective attachment of the people to their laws and constitution. It goes to their loyalty: and is not loyalty the whole point of section 44 (1)? Lawyers don’t much like affections; but there is no true law except it is connected to the affections of the people. Many people still find it difficult to accept that the failure of the 1999 referendum said something about the affections of the Australian people.
I’ve said that there is no difference in terms of power and independence between Australia as an independent nation and Australia as a discrete realm within the monarchy. But the monarchy itself is a difference, and there’s the rub. To the progressive Australian mind the monarchy itself, regardless of the fact that it pervades the Constitution, is foreign. And so to such a mind it is the monarchy itself that becomes the last barrier to Australian independence; and the less it is allowed to impinge the better! Is that what the Sue v Hill judges thought? Probably not. The rejection of the monarchy was a conclusion that presented itself of its own accord as the product of invalid reasoning. Either way, the High Court had no authority to excise the monarchy from the meaning of section 44 (1) of the Constitution.
The 1999 referendum rejecting an Australian republic was decided a few months after Sue v Hill. Had it gone the other way the High Court’s decision might have been excused as prescient. But the people maintained the monarchy, leaving Sue v Hill as a blot on Australian constitutional jurisprudence. It is hard to believe that if the order of events had been reversed the judges would not have been reminded that Australia really was a constitutional monarchy.
Had Sue v Hill been overruled, all of the Barnaby Seven would have been cleared. Only Senator Canavan’s possible citizenship was foreign within the true meaning of section 44 (1), but he was cleared anyway on the facts of the case against him. This does not mean that the whole problem would have been resolved. Many immigrants who are now Australian citizens have come from other than Commonwealth countries and should have a right to stand for parliament. The High Court rejection of subjective excuse would continue to apply to them.
But even for non-Commonwealth immigrants, the monarchical meaning of section 44 (1) has a lot to be said for it. Freedom is not an abstract thing: it is to be found only in history. The monarchical reading of section 44 (1) marks a connection of our history to the historical constitution of Westminster freedom. Why is Australia a free nation, where many other nations are not? It is in large part because our history is a history of freedom, a history of the Westminster freedoms that have evolved in the Crown’s name over the better part of a thousand years.
But, as modern Australian progressive thinking has it, we should not discriminate between a New Zealand immigrant and, say, a Vietnamese one. And nor should we. But as usual the word is used in a fuzzy way. Our case is more a discrimination between histories than persons: the New Zealander’s Westminster history on the one hand, and the recently painful—certainly not free—Vietnamese history on the other. Will not the Vietnamese person embrace the Westminster history, rather than regard it as a vehicle of oppression? If not, what was she doing on a leaky boat in high seas, with the possible death of herself and her children a constant companion? Of course she will; and she will have a far sharper understanding of history, and its significance for the freedom of herself and her family, than is to be found in the circles of progressive Australian thinking.
What can now be done to manage the problem? I would suggest that the Parliament itself should take the matter in hand, and the High Court should pull its head in. As I write this it seems that the Parliament is going to require current members to make a formal disclosure of their citizenship status. But that is not a solution to the whole problem. The Parliament, however does have the power to resolve the whole problem, and it should use it.
From the case of Goodwin v Fortescue in 1604, when James I failed in his attempt to refer questions of the qualification of members of the House of Commons to the Chancery, there has been a long Westminster history holding that such issues are to be resolved in the house of parliament in which they occur. And even when in 1868 the Commons decided to refer such matters to the courts, their basic power was not in doubt. Section 47 of our Constitution acknowledges this history when it provides:
Until the Parliament otherwise provides, any question respecting the qualification of a senator or of a member of the House of Representatives, or respecting a vacancy in either House of the Parliament, and any question of a disputed election to either House, shall be determined by the House in which the question arises.
The Australian Parliament has otherwise provided (sending section 44 issues to the High Court). But what it has provided it can unprovide: the power, or part of it, can by simple amendment of the Electoral Act be returned to the Parliament. And the part of it that should be returned is the second limb of section 44 (1), whose concern for the problem of dual citizenship is of a different order from the other issues in the section, including the first limb of section 44 (1)—acknowledgment of allegiance, etc. A second citizenship is a broad international fact, quite different from, say, the question of whether a certain member is bankrupt, or is a spy under allegiance to a foreign power. (It is not unusual in our constitutional law for the courts to defer to the Parliament or the government on broad international facts such as the recognition of new nations, or whether Australia is at war with a certain foreign power.)
If the issue of dual citizenship were retrieved by the Parliament, it would need to establish a simple process by which it vetted the citizenship status of new members and senators; and there are simple rules that each house might make, or make jointly, that would simplify both the process and the problem itself. For instance, they might make a rule that says no question of citizenship by descent will be taken back beyond one generation; or that no person born in Australia to parents domiciled in Australia at the relevant times will have their citizenship questioned. In fact most of the arguments in the recent case offered simple and sensible suggestions along these lines, which a committee of the Parliament could address and in some cases accept. Now, I have earlier said that these “simple and sensible suggestions” were bad legal arguments. How can these two things be reconciled?
The constitutional role of the High Court as the final court of appeal in Australia is widely misunderstood. It is not the exclusive interpreter of the Constitution. The Parliament also interprets the Constitution—how else would it know what fields of power it could validly legislate in? And the executive government and the whole of its administration often have to interpret the Constitution to decide what they can validly do. Even the ordinary citizen who wants to know whether, say, to file a tax return must look to the fact that the body requiring it finds its power in the Constitution. (“Why should I pay tax?” “Well look here—you can see it in the Constitution.”) The High Court is not the exclusive interpreter of the Constitution; rather, it is the final determinant of all legal issues, including the interpretation of the Constitution. And in any final determination it is perfectly capable of recognising parliamentary interpretations as valid despite their not being exactly what it would have decided itself. In fact, the High Court’s “final” decision in administrative law cases often involves just that sort of deference. In the case of the interpretation of section 44 (1) of Constitution, we could present the difference in this way: whereas the High Court (now) makes a legal interpretation of the section, the Parliament, were it so empowered, would make a practical and political interpretation of the sort that I have suggested.
It would follow that if an elected candidate approved by the Parliament’s committee were subsequently to be challenged in the High Court, the High Court would have the final determination, but that might simply be: the case has been validly determined by Parliament. Of course, there would be limits here: a parliamentary rule would need to have a genuine connection to the problem presented by section 44 (1): it could not simply defy the section. In cases of defiance, or other failure to respect the section, the High Court would act. Every argument that the legion of lawyers addressed to the High Court for three days in October did address the section: none defied it. The point is, the arguments lost because they were addressed to the wrong tribunal.
Michael Detmold is a Professor Emeritus of the University of Adelaide.