The Dilemma of the Constitution Writers

Since we didn’t have Australian citizens when the constitution was written the authors framing s44 needed to use the next best method, i.e. definition by exclusion. They couldn’t say ‘Australian-born’, as most prominent people, including themselves, were foreign-born. They could have said ‘British subjects’, but this was a declaration of a new nation and couldn’t be defined in terms of another nation. So they really had no choice but to define those eligible to be elected by excluding ‘foreigners.’ Since the Australian Citizenship Act, 1948, this section of the Constitution has become irrelevant, and the High Court should have ruled that way, since that time.

But the High Court, being vastly intelligent, and therefore capable of reading but apparently incapable of thinking, have decided that because a grandparent brought a person’s parent to Australia as a child and that country has subsequently decided that the grandchild is now eligible to be a citizen of that country, that person is now ineligible to stand for parliament. The High Court seems to think the founding fathers were idiots or nitpickers, determined to confound the democratic process.

The founding fathers would be tearing their hair out with rage. ‘No!’ they would be saying, ‘we didn’t mean that at all!. You’re being silly. Stop it!’

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Bite the bullet

The constitutional problem is not going away. This issue will come back again and again. Somebody is going to have to fix it. Let’s do it now.

All we need to do is change part one of section 44 to read that a candidate for the Senate or House of Reps must be an Australian citizen. Full stop.

The act to put this matter to a referendum could simultaneously protect all current members of parliament from challenge. That would tie the hands of the High Court until order is restored. I think this referendum would have overwhelming support and pass easily.

It’s all the High Court’s stupid fault

Don’t blame Malcolm, it’s all the High Court’s fault.

I know that some people say, ‘the law’s the law.’ We know that ‘ignorance of the law is no excuse’, but there has to be a limit. We have a small constitutional crisis and the High Court recently had a chance to correct the situation but all they could do was to prove that they could read.

Section 44 of the constitution says that one can’t stand for election if one is “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.” (my emphasis)

The learned judges, being able to read, have decided that anyone who, at the time of their election, could have shot off some application papers, birth certificates, photographs, certified copies of photo ID etc. and thereby gained for themselves a passport of  another country, was not eligible for election and therefore is out.

A seven-year-old could do the same. The role of the judges is supposed to be to interpret the constitution in the light of time and changing circumstances. There’s no point in having them if all they do is repeat what is on the paper without any thought. The principle thing on their minds should be, “What need prompted and what did our founding fathers mean when they wrote those words, and what benefit to Australia derives from that meaning? Therefore, what meaning can we now put upon those words, consistent with the need and the benefit that Australia derives.”

The circumstances that led those who framed the constitution was a fear that foreign governments might urge their subjects to join the parliament and undermine Australia’s independence by acting as agents of influence within the halls of power.

Ironically, now, by the current interpretation, foreign governments are influencing election results by having laws that entitled people to citizenship, whether they sought it or not. This situation is clearly outside the intentions of the framers of the constitution. If the learned judges are to be believed, the purpose of section 44 is to create traps in the election process that can be deployed upon an unwitting MP or Senator by their political opponents. The judges obviously believe that the founding fathers were intent on mischief in order to create chaotic situations whereby governments could fall on the whim of a foreign power handing out citizenship willy-nilly.

If I had been a learned judge on that day I would have used the word entitled to effect. Entitled can have shades of meaning. It can mean something that is in prospect, i.e. not yet established or it can mean something that exists right now. For example, it is true to say that I am entitled to catch a plane to Perth as no one can stop me if that is my intention, but another shade of meaning is more strict. In fact I am actually not entitled to catch a plane to Perth, because I don’t have a ticket. Once I go to an agent or website and complete the application, and provided there is a spare seat, and I complete my booking, print off my e-ticket and go to the airport, then and only then, am I entitled to catch a plane to Perth.

The learned judges have chosen the first interpretation, i.e. that an entitlement includes something that is hidden and completely prospective, like someone being 415th in line for the throne being entitled to be King. They have really done us a disservice and shown what a bunch of fools they are.

If only the founding fathers had framed those words to ensure that politicians or parties could not accept, either directly or indirectly, financial benefits or campaign contributions from foreign powers! Then we would be addressing a real and present danger.

The Evolution of Australian Democracy to a higher level

So, here’s the plan thus far. We want to be a republic, but we don’t want to risk getting some Donald Trump or political hack as our president. The current system has served us well because the Queen is not elected, is perfectly respectable and represents a form of ideal, while the Governor-General is above politics and has to live up to this ideal. So, if we take the Queen out of the equation what can we insert that achieves this ideal state? My answer is to retain the ideals but remove the actual, real person. This virtual president would be a new section of the constitution and would retain all of the good features of the Queen while giving Australia a bridge to a republic. I see it as the evolution of democracy to a higher level.

What then would be the ideals and principles of the virtual president? Here are my suggestions.

  1. To uphold the Constitution of the Commonwealth of Australia
  2. To be dedicated to truth
  3. To uphold the equality of all people, regardless of their background or circumstances
  4. To respect the unique value of the original inhabitants of our continent and of their descendants
  5. To preserve the environment that we share and attribute to it its true value
  6. To move toward perfecting a harmonious society through laws that respect the rights and freedoms of individuals
  7. Uphold the freedom of the press to report in the best interests of the people
  8. Uphold people’s basic right to freedom of thought and belief
  9. Uphold people’s basic right to freedom of truthful expression
  10. Uphold people’s right to assemble and express their views whether in public or private.
  11. Ensure that people under the jurisdiction of the Commonwealth are free from torture, cruelty and punishments incompatible with humanity
  12. Ensure the rights of all the people of the nation to the basics of life: food, clothing and shelter.

A Virtual President

A virtual president isn’t a politician, doesn’t belong to a political party, doesn’t grow old, doesn’t have donors and would never become a tyrant. A virtual president is dedicated to certain ideals that would be newly-written in the constitution. Then we could become a republic.

Of course, you would need to have an actual person represent this ideal president. The parliament would appoint a real person, a highly-regarded citizen, to represent the virtual president. We could give this person a novel title such as “Governor-General.”

The Governor-General would conduct his executive powers in line with the current constitution, i.e. on the advice of the Prime Minister, only in-so-far as they did not contradict the ideals and principles that are set out in the constitution regarding the virtual president.

So, what would be the ideals and principles that form the virtual president? I would like any reader to contribute any ideas in the comments box below and send a link to their friends who might also want to contribute.

My initial view is that these principles should not be too prescriptive, not too narrow or encumbering. I think ideals like freedom of speech, freedom of belief or non-belief, free press and the rights of individuals would get in there somehow. The virtual president would treat all people equally and work for the good of all, working for the powerless against the powerful.

The words would be important. Please contribute.