The High Court's decision last month to disqualify five federal parliamentarians for being dual citizens represents the worst excesses of judicial activism in Australia.
In deciding that deputy PM Barnaby Joyce and Senators Fiona Nash, Malcolm Roberts, Scott Ludlam, and Larissa Waters were ineligible for parliament for being citizens of a foreign power, the High Court has not only confirmed the absurd precedent established by the activist court under Chief Justice Anthony Mason in the 1990s, but has once again repudiated sound constitutional philosophy as well as the founding fathers of our Federation.
The provision in question, section 44(i) of the Australian Constitution, disqualifies from federal parliament any person who "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".
The requirement that a person not have divided loyalties to serve in parliament is a morally defensible rule. But what amounts to a foreign allegiance under the Constitution? The High Court's literal reading gives it an incredibly broad application. Absurdly, this means that the Australian-born Mr Joyce is considered a New Zealand citizen under the Constitution, despite his New Zealand-born father having moved to Australia prior to the introduction of retrospective New Zealand legislation establishing NZ citizenship. The Australian on 3 November threw doubt on the eligibility of energy minister Josh Frydenberg, whose mother was born in a region that may now be subject to Hungarian citizenship laws.
But the danger of a literalist approach to constitutional interpretation is not merely that it occasionally creates absurd outcomes. The danger is that the meanings of words change over time.
For this reason, the only sound method of constitutional interpretation is to fix the meaning of the words to a particular point in time. There are effectively two ways to do this, loosely described as the textualist and originalist approaches. Either method would arrive at the constitutionally correct result.
Under the textualist model, judges should interpret constitutional words with reference to how they were understood by society at the time they were introduced. In particular, the concept of citizenship today bears little resemblance to citizenship at the time of Federation. While citizenships are collected like trinkets today, national allegiance was once treated with great jealousy by countries that awarded them. As understood in 1901, there were effectively only two ways to become a citizen. A person born in a country automatically assumed that citizenship, while those born overseas could become a naturalised citizen over time, automatically discarding previous allegiances in the process. The concept of "dual citizenship" is a modern invention — historically such a thing was not permitted. Obtaining a foreign citizenship required an obvious repudiation of your domestic allegiance. Under this reasoning, the disqualified parliamentarians could not be regarded constitutionally as foreign citizens because no such foreign citizenship was sought.
This is clearly reflected in the debates surrounding the drafting of the Australian Constitution. At the National Australasian Convention in Sydney in 1891, the draft bill to constitute the Commonwealth included Clause 46, the precursor to the eventual Section 44, which disqualified any person "who has taken an oath or made a declaration or acknowledgement of allegiance, obedience, or adherence to a Foreign Power, or has done any act whereby he has become a subject or citizen or entitled to the rights or privileges of a subject or a citizen of a Foreign Power ... until the disability is removed by a grant of a discharge ... or otherwise". Note the phrases that impose an active element of the provision: "taken an oath", "made a declaration", "done any act". The draft provision was adopted in successive Australasian Federal Conventions in Sydney in March-May 1897 and in Adelaide in September 1897, both with little debate. It was revised before taking its final form in Section 44(i) at the Melbourne convention in March 1898, where the official records of the debate reveal that Edmund Barton, in noting a series of drafting amendments, said "no liberties have been taken with the work of the committee ... not one of these amendments alters the sense, except where the Convention has practically directed it to be done" — a direction which was not given in relation to the disqualification. Days later, Isaac Isaacs congratulated the drafting committee for its "very good work ... in the attainment of brevity".
Indeed, given the wider conceptual understanding of citizenship at the time, the changes to attain "brevity" would have aroused little debate. Regardless, it is clear from the historical record that the disqualification clause is directed towards people who actively give their loyalty to a foreign power. In light of the convention debates, passive reception of a citizenship arising from the operation of the laws of another country would not be enough to enliven the serious consequences of being deemed ineligible for parliament. Therefore, the originalist method too would rightly save the disqualified parliamentarians.
To read Section 44 in isolation outside of the original intent and to disregard the meaning of the words at the time it was drafted, requires the interpreter to assess those words in light of how the words are understood at the time of interpretation. And when the words are implicitly "updated" to align with the changing times, it is indistinguishable from the "living tree" philosophy that has dominated so much constitutional interpretation in Western courts in recent decades. And living tree philosophy can usefully explain many of the decisions from the Mason High Court, including the Mabo judgment, implied constitutional rights and the precedent it established in Sykes v Cleary in 1992 where our current understanding of Section 44 was concocted.
The High Court, in unanimously confirming this precedent, have assumed for the judiciary a mammoth power that ought to concern all observers, but is so far going without notice. The court has given itself the power to arbitrarily disqualify members of parliament without constitutional permission.
That this can happen with so little comment demonstrates why it is so important for Australians to start judicial appointments and philosophy as a serious topic of public debate.
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